vs the united states army corps of engineer the right to make those rules under chevron look sample of chevron to taken to a higher level my clients purchased a track of land in two thousand my clients purchased it clearly for the purpose of development my class developed servant development plans for the property over the years those of us plans had to change after katrina because the market changed at the  development containing numerous houses but a smaller size because that's where the market was going they found a formal plant the plaque in mint parish to develop that that new development they negotiated  parish about certain things on the plan that was going on some of tennessee with the end of that period in two thousand and eight the corps of engineers had been tasked with rebuilding the levees that had suffered damage to in katrina it was an enormous project it was a tremendous amount of money that was congress appropriated to address that issue the corps was  deliver it to the levees the problem the corps ran into is there were more levees needing repair more quickly than they could condemn and acquire government furnished borrow so this district other district the country developed a concept call contract to furnish borrow and that is individuals who own accessible clay could develop those clay deposits themselves they could sell it to a contractor both of those had to be repaired the corps began sending letters to my client in about two thousand and eight which says we're interesting in acquiring your property but it is a quine they said taking the property my clients wrote back initially and said we're going to have a housing development here we don't want to take up property of the course that well tough we're still thinking about it we're examining it we're standing survey is out we're saying people the drill out there determine the quality in the quality of play there my client thought about the thing and said well it looks like we're going to be condemned here we model to grab what we've got so they hired an expert miner jerry howe to come in and to evaluate the property jerry came in and evaluate the property there and said gosh you've really got a big deposit here simultaneously the records show the core came the same conclusion and discovering there's a big plate of posit here and you're sitting between two levees which immediately required and the miner said confirmed by the expert for the government the price of putting clay on top of the levee is mainly the differential between hauling cost mining itself and repairing the site or roughly the same the big cost and that levy redevelopment is transportation the further you drop it cost a whole lot more that's the factor determines everything you're sitting right here in the middle one hundred yards of the sign that in fact the back living runs through your property you've probably got the cheapest available or the core could ever purchase s letter is important remember this in the letter and it was the same sentence that was in the prior letters the words are and you are free to do as you wish with the property until it is acquired that that they were can still considering condemning the property but they were telling the client we haven't acquired it and until we acquire it you're free to do with the property as you wish until we acquired that because the issues the issue with we when track was the track two which was not open fields it was partially open fields about forty acres partially wetlands about one hundred acres and partially habitat kept habitat type call bottomland hardwood dr uplands the core has always and mid that these are uplands not within his clean water act jurisdiction the course says we have no jurisdiction over that property or use you in that property and they consistently say that when we got the second track qualify later in two thousand and ten the corps then said you're going to need to mitigate but the bottom line hardwoods the uplands my client and a number of other people or the other parties who are simply situated with bottom land would uplands which seems an oxymoron but that's what is called said wait a minute while we've got to mitigate anything we can do whatever we want  with the course says you can do whatever you want to with it but because of the water resource development act of eighty six as amended in two thousand and seven at a katrina we're required to mitigate if we impact bottom hardwoods  but the core you are have federalized all the levees there was no other use of the clay everything was either paid for by the corps the courses will contribute money to it you have to do what the course says so the the court there was no else to sell the club for no other purpose besides the federal levels so there was no market for it and you couldn't do anything else with the property the code was preventing you from the nothing else with the property that no but the original development plan could not work it and recreation it had no other opportunity uses because you couldn't get to it because you had to go through the mine which is already built that's the course expert so the only thing we could do with procedure now as to core the make that impediment to our ability to sell that claim if you read carefully and not very carefully were and which is where you need to go in order to make a decision the statute is pretty clear it's a planning statute and what it does it says to the core you have to propose how you're going to mine and how you're going to mitigate to us congress before you do it and the other porn parts of that if you look at twenty two eighty three quit with it where does it say that what you just said say well we have to read the whole statute if you read the whole statute what it is if you read as our brief shows that say that shall not make any rules but there are no words that says you can make any rules or regulations it's silent and silence generally the law has been determined to say you don't have the right the fifth circuit has said that that you don't have the right to make rules and regulations just because down south if the if the statute provides for doesn't provide for rule making is generally considered not to be able to rule make of this is why i asked about the regulatory suspending question right i mean if this were the army corps of the secretary of interior regulating it that's for one one setting but it sounds like here they're trying to buy from you or they're hoping to buy from you but they want to buy under certain conditions they want to buy if we pay for the mitigation right it's a condition of the contract that's correct and as a condition which we say i'm sorry i would not have you that's a condition we say they cannot put upon us because it's not within their regulatory authority to make that rule if you read if you read twenty two eighty three in the list let's stipulate that the pentagon doesn't have statutory authority to buy pencils does that mean they can't buy pencils you're going to me seems to me that part of their general appropriations authority general authorization statutes allows them to spend money for things that are consistent with their mission could does could i assume that governs best out argue that this was fully within their broader authority i'm sure they will argue that the difference here is that this statute provides who pays for it if you read twenty two eighty three see it tells you exactly who pays for the mitigation and who pays for it or the core and the nonfederal sponsors it sets forth who pays for the mitigation and the transference of that mitigation obligation to two third parties who are not negation credits cost us twenty five thousand dollars a credit it was our to thirty thousand it was going to cost us two and a half million dollars up front to be able to man this track and it doesn't provide th want which we said we will give you the federal government in mitigation as for this project there are no rules up on medication there are no procedures for we said we'll give this to an initially the core like that they said this is a good idea to us in the end a flipped on us in two thousand and thirteen is that well we've decided that we're not going to go for that and you can't have that you cannot put any kind of a geisha in place there's a  the opening remarks white oak still owns its property it can still develop it as it wishes it can go back to its original plan and develop its shopping center and housing development and it can still actually excavate and sell it soil or clay on its property for use in nonfederal levee construction projects and there are in fact state and local levee construction projects that may or may not have the same mitigation requirement associated with them but are not  so but this gets to my next point which is that there is no property interest here in selling minerals to the army corps for use in federal levee construction there is a property interest in  excavating minerals on one's land that one owns but here the only asserted property interest that white oak alleges was taken was the loss of a business opportunity and specifically the loss of its ability to sell soil to the army corps of engineer and this gets back to judge hos question about whether this is a sort of general regulation on white oaks ability to use its property or really whether this is more of a spending requirement and what what's notable about this case is that the imposed this mitigation requirement through its contracts with its levee construction contractors and its levee construction contractors were required to provide proof that mitigation had been purchased prior excavation and construction of levee of levees the requirement was never imposed on land owners individually and in fact the record is replete with documentation from the corps stating that it has nothing to do with the contract into between its levee contractors and landowners the mitigation requirement was exclusively a contractual requirement it is also based on the core statutory authority now might put the opposing counsel states that there  simply no basis in the water resources development act for requiring mitigation to bottom land hardwood forests but that is just not true if you look at section twenty two eighty three d three my apologies d one it states that projects must have a specific plan to mitigate fish and wildlife losses created by water resources development projects and you know that cetera and those product those plants mitigation projects and plan shall ensure that impacts to bottom land hardwood forests are mitigated in kind so the corps interpreted that language to provide it with the authority to require mitigation of impacts to bottomland hardwood forests when soil is used in federal projects so there is a nexus to a federal project there is also other statutory authority that the court could have relied on and in fact did rely on in its explanation of of the mitigation requirement and that that comes from the need to regulations which require the court to consider alternatives that will avoid and minimize impacts to habitat those regulations are forty c f r fifteen zero two i i would like to touch on a point raised by my opposing counsel about chevron deference we submit that chevron deference is appropriate here because the corps has delegated statutory authority to implement the water resources development a reconstruct these levees under several emergency authorization bills that were enacted after hurricanes katrina and rita destroyed the levees here and but even if this court finds that chevron deference is inappropriate because the interpretation was too informal the scorched still defer under skidmore because the corps reasonably explained its decision it consists thoroughly consider the issue its decision is based on it on a reasonable interpretation of the statute and the core applied  consistently the i would also like to point the court to appoint point this court two pages in the record where the course of th difficulty talks about how it it sort of got to its its decision for these particular projects and those pages are in my brief but again it's us a c e five seventy three to eighty two and that and that those pages referenced the prior environmental analyses and statutes under which these levees were originally constructed and the corps was directed by congress in the late two thousand to go and rebuild those levees under those original water resources development act authorizations and so sort of you know my opposing counsel served as will the this district did something that no other district did but first of all the record shows that the corps has has otherwise relied on contractor furnished borrow and secondly it doesn't really matter because the corps was authorized to do so by in developing its mitigation plan for the levee reconstruction here the army corps required its contractors to provide mitigation in the form of proof of purchase of mitigation being credits and money while the money so the contractors would pay if if the contractors proposed to excavate soil that would impact bottomland hardwood forest or destroy the forest essentially then the contractors would submit a proposal to the chorus then we want to excavate eighty acres the corps would look at the habitat value of those eighty acres which is what happened here there was eighty proposed acres to be excavated the core looked at those eighty acres in conjunction with the fish and wildlife service to determine to  determine the habitat value of those eighty acres and then determined that the contractor would have to purchase forty units of of habitat of habitat credits f valuable habitat and sort of use the money to acquire and maintain and purser of the valuable habitats the corps never own so that the habitat that is purchased the habitat is just simply being and maintains the the preserved habitat to offset the habitat losses so i'm not sure if you're going if you're going there with your questions but what i'm sensing is a question about who is there a taking of money maybe or was the money being transferred was the money that the contractor or maybe white oak would have to pay going to be transferred to a third party or to the army corps was the corps extract ng a benefit from white oak well the answer is no because the i mean for the simple first reason which is that the the cordon imposed requirement on white oak it imposed on its contractors how whether a contractor chose to excavate white oaks property or not again white oak isn't entitled to a certain market price where the best market value the met the best market price for it's clay if you will it is an even playing field because other property owners who also owned property with bottomland hardwood forest were subject to the same i don't even want to say requirement because the requirement wasn't imposed in the landowner the requirement was imposed on the contractor right it could pass through alternately white could have negotiated with a contractor to to pay for the mitigation credit and then receive less money but essentially i mean you have to look at it or one way of looking at it is why i don't own a certain piece of property and that property had certain features on it that made it less valuable for use as borrow excavation because of this mitigation requirement which the corps put the public on notice when it was developing and provid opportunity to comment so from the outset the public was on notice of this requirement but white oak bottom line is white owned a certain type of property it had certain features associated with it and what white oak is trying to do is say will army corps m you my property will because of the features associated with my property i'm going to make less money on this train transaction than somebody else who didn't have that kind of a property it's not the government's business to ensure that everybody gets the same value for property with different features it's a free market and you have what you have and you can sell it on the terms that the government will buy it on the core essential he created a business opportunity for white oak to participate in but it had certain parameters on it and you know finding in favor of what white oak wood would be akin to sort of saying in judge hose example if the department of defense wanted to buy pencils but white oak was only selling me i give you that your honor but the the analogy does not hold because in your example the two pencils are identical here the two properties that might be owned by any different landowner are different have would have in that case to manufacturers competing on equal footing with the same product being treated differently and then you might have a due process or equal protection problem here you have landowners trying to sell their soil to t contractors who may make their decision to buy it based on any number of circumstances that are unique to the particular landowner for example how you know the other contractual terms is is that you know how long to a location do they have the type of the soil on the property is that the right mix of clay or is it too sandy so there's any number of requirements that i mean the core imposed soil type requirements on property owners it would be the better analogy would be someone who owns sand trying to come in and say army corps buy my sand even though it doesn't fit your technical requirements because you just need fill material and otherwise you're not getting the same business opportunity that somebody else have the bottom line is that white oak has no property interest in selling its oil to the army corps of engineer free of any sort of contractual terms that the that the corps would want to impose on it also white oak still can develop its land its still retains title to its land the army corps didn't actually take any of its physical property i would also like to point out just sort of backing up that there's a question here and we argue that this that this court actually doesn't even have the jurisdiction to consider the takings claim in the first place because white oak is not asking for compensation it's instead of asking for declaratory relief and the supreme court in a plurality said aquittal relief is sometimes available for takings claims if congress withdrew tucker act remedy or remedy for just compensation and the the court the plurality in east in the in eastern enterprises case found that congress could not have intended a tucker act remedy in that case because the statute required payment of money retroactive liability on a coal company to pay money into a fund and so it would be nonsensical to require the coal company to go to the court of federal claims and ask for the precise amount of money to be returned to it that would be the normal remedy if the government takes your property you have to go to the court of federal claims to get compensation for the property that was taken here white oaks property was never taken by the government and so again it's asking for equitable relief but this case is not similar to the facts of the eastern enterprise this decision because here there was no retroactive requirement on white oak to pay money for something that it didn't do or was no longer doing in the eastern enterprises case the coal company was required to pay money to retire a benefit fund and it was no for employees that were not its own and it was for a time period when it wasn't actually operating so it was sort of a punitive if you will requirement statutory requirement you that i would guess that if a government  can potentially but here the government didn't threaten its repeatedly threaten to take white oaks property what happened was in two thousand and eight the army corps went tried to go to the site in fact white oaks principles tried to keep the prop the corps off the site refused to let the corps on the site at times white over excuse me the army corps tried to go to the site to figure out whether it could condemn the property for use as a bar or a site and white oak objected it's at it's at one ninety in the record which is not included in the it's u s a c e one ninety the army corps wrote to white oak and said we're considering taking title to your property and if we did we would pay you but until we actually take your property you have every right to do with it what you wish to do and in fact if white oak had actually developed it at a shopping center at that point it probably would have increased the value of if the army corps had actually decided to take the property because then it would be a shopping cent rather than an empty undeveloped parcel of land but that's neither here nor there the point is that the army corps put put white ogaden notice that it was not taking its property and that it was considering it and it could do what it wanted to do until th and all of those inquiries into whether the corps would condemn the property ceased in two thousand and eight so the corps investigated and then abandoned its efforts in two thousand and eight it didn't it didn't actually try to do to condemn the property at that point so going forward and then the property sort of moved into the to the bar furnished for the contractor furnished bara categories like after two thousand there were no that's correct to the core the court didn't try to condemn the property or didn't further investigate condemning the and part of the reason why the court decided not to try to condemn the property is because the core had to obtain too much soil to accomplish its objectives and it couldn't actually acquire that much soil and you know follow all of its stature obligations and reconstruct all of the levees it was just too much there was too much material required and that also that same reason goes to explain why the army corps rejected white oaks proposed on site mitigation plan it was simply impracticable to for the court to try to develop on site management a particularly with landowners when the corps was actually contracting with its contractors it had no relationship with landowners directly in these levee construction projects i contractors were we're bidding on on these projects and so alternately the market should reflect the correct cost or the all of the costs of obtaining the soil ultimately the core would be paying for the mitigation event because the costs of obtaining the soil would be built in everybody knew what the mitigation requirements were if excavating soil is going to impact bottom land hardwood for us thank you go thank you you the case of national beverage and water claims is the example here of what the court did what it can do and property of course position national brevard if you brought this up was that they pay for the surface value they will not pay for the war in the ground national beverage sued the corsi and i'm going to be paid for the on the ground and national beverage one but the corps modus operandi in this district at two thousand and eight was we only pay for the service by which international beverage was some farming and some cadillac pastures instead of paying for the value of the war that's why everybody was so afraid of condemnation it was a real threat they take it for your service value and pay you nothing for you or that was a situation that's  so that's why they stop it is not because of any other reason the reasons you gave they are not in the record anyplace that's the first time i've heard those reasons about why they stop and there isn't a reason why they stopped that we said we'll do it that's the other thing i want to point out on the market back here in the hour it came out that that said that we would have to put up some money in to cover mitigation they listed about ten different from eight ten different properties including ours that had this problem do you know how many of those properties every ball in the bottom and hardwood credits in order to sell a claim to the government of those ten they didn't fight is qualified  not anyone because the market was shut down for everyone who had the situation the cost of mitigation at the price of two and a half million but we had other people had the same other him that more property do you know how wetland credits were actually by private parties for any reason going until january of last year twelve point four acres and they arranged for different things this proposal shut out from the market place all those listed in the our you which had hundreds of acres of clay could not participate because the cost was so high it is a condition they impose on some  mahler's only those partials that had drop bottomland hardwood that was overlay in the clay first you have prove the clay was there then you had to prove what was on top of so what if the government simply said you know what we're just not going to make an offer the and the fifth circuit said in that case that's wrong you cannot limit the playing field that way by putting a a condition on what you have to do the playing and you know if there's an arbitrary yes but it's a condition that's just random in our that's correct mitigated for but i do want to let me go to the point to tell you again if you read the statute what they are entitled to do it says that they shall mitigate the bottomland hardwoods in patent we know what any can means to the extent possible at the end it says to the extent possible but that we prove you could do it they didn't reject our plan what if you read the rejection which is in our brief as well they rejected it because they said it was costly they said it was time consuming and it was a question they were under some pressure to address the live situation fairly expeditiously so they could make a determination that this was an inefficient way to do it which means it's effectively not not possible to do it given the time mature trees fully grown control by a plant by the southeast land trust conservancy just like a weapon bank nothing had to be done but approve it and that process went on for four months and there were different views within the agency about whether except this and not what the excuse in the end was the only excuse they gave was the property was not mature and ready to be and would have to monitor and take time there was no time required here we proved you could give it in to