Legal Case Summary

Schooner Harbor Ventures v. United States

Date Argued: Thu Jan 08 2009
Case Number: CA2014-03-082
Docket Number: 2602909
Judges:Not available
Duration: 41 minutes
Court Name: Federal Circuit

Case Summary

**Case Summary: Schooner Harbor Ventures v. United States (Docket No. 2602909)** **Court**: U.S. Court of Federal Claims **Date**: [Insert Date of Decision if Available] **Background**: Schooner Harbor Ventures, a developer and operator of maritime facilities, brought a case against the United States, seeking compensation for alleged losses incurred due to actions taken by federal entities. The plaintiff claimed that federal government actions, particularly relating to environmental regulations and zoning, adversely affected their business operations and property value. **Claims**: Schooner Harbor Ventures asserted that the government’s actions constituted a taking under the Fifth Amendment, which prohibits the government from taking private property for public use without just compensation. The plaintiff argued that regulatory changes, including changes in navigational channel widths and environmental restrictions, imposed substantial limitations on their ability to fully utilize their property for commercial purposes. **Legal Issues**: 1. Whether the government’s actions resulted in a compensable taking under the Fifth Amendment. 2. The interpretation of what constitutes a 'taking' in the context of regulatory actions. 3. The extent to which the plaintiff suffered economic losses as a direct result of the government’s actions. **Court's Analysis**: The court evaluated the nature of the government’s regulations and their direct impact on Schooner Harbor Ventures' operations. It considered precedents related to regulatory takings and applied the Penn Central Transportation Co. v. New York City framework, which assesses the impact of government regulations on property and the investment-backed expectations of property owners. **Decision**: The court ruled in favor of the United States, finding that the regulatory changes did not constitute a taking under the Fifth Amendment. The court determined that the government had legitimate interests in protecting the environment and public navigational safety, and that the regulatory changes were part of a valid exercise of police power. The plaintiff's claim for compensation was denied, as it was found that the economic impact on Schooner Harbor Ventures did not rise to the level of a taking. **Conclusion**: The ruling reaffirmed the principle that not every government action that affects property value qualifies for compensation under the Fifth Amendment. The decision underscored the balance that must be struck between governmental regulatory authority and private property rights, especially in cases involving environmental and navigational concerns. **Note**: Additional details regarding the specific dates, judge's findings, or concurring/dissenting opinions, if they exist, should be included for a more comprehensive case summary.

Schooner Harbor Ventures v. United States


Oral Audio Transcript(Beta version)

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. The standard of review is de novo. The sole issue before this court today is whether Schuner Harbor's taking claim has ripened. I would like to direct your attention to pay precisely, isn't it, whether I guess you're entitled to the benefit of the utility correct? If I could direct your attention to joint appendix page 13, I believe this is the first error of the trial court where the trial court stated that Schuner Harbor cannot assert that no private development would be allowed. I believe this is the wrong standard and I think the proper standard was promulgated in the Palazole case, which is located at 533 US 606, where the Supreme Court stated that a taking claim is likely to have ripened once the permissible uses of the property are known to a reasonable degree of certainty. Well, where was the reasonable degree of certainty here? The Navy had gone and they had gotten permission to develop, right, even as just a big silly, and they had gotten certain criteria. What is that cut to do with your private property development? I think the Federal Wildlife and Fisheries Services issued a letter dated August 3rd and a biological opinion. And those are located at page 33 and 90 of the joint appendix. And I'll read a few passages out of there, brief passages, and this gets to the point of where they issued this broad opinion, which regulated not only the Navy, but also Schuner Harbor. Well, let's imply that they didn't regulate any private development on there because that was under Section 7 of the statute

. Well, I think there were some language in those letters and the opinion that actually did reference private development. And I think anyone looking at those documents would find it hard to believe that there would be any type of development allowed, whether it be the Navy or Schuner Harbor. The question still remains whether or not you filed an application of the Section 10 of the statute. Was there a Section 10 file? No, and we readily admit that we did not file an initial permit application. But the reason for that being that any initial permit application would have been denied because the Federal Wildlife and Fisheries Services had already issued an opinion that no development would be allowed without mitigation. But you can probably know that without filing an application. Well, I don't think we can say that with absolute certainty, but I don't think that's the standard here. I think the standard is once the permissible uses of the property are known to a reasonable degree of certainty. And I think anyone would- You just said that without mitigation, so you agree that certain types of property could be developed. But are you complaining only because we know they would have required some sort of mitigation? Well, I think that's the take that occurred here is they regulated the property and now the property is development restricted. And anyone knows that a development restricted piece of property commands a lower price than an unregulated piece of property

. And I think that's where the take occurred when Schuner Harbor had to buy this. So just by the fact that they have enough to file a permit, that devalues your property and that consists of a taking. Right? Just because there's some regulation even though they might ultimately approve your plan or commit. Right? No, you're on it. No, that's not what I'm arguing. I'm not saying that the actual filing of a permit was the regulation. I'm saying that when the Federal Wildlife and Fisheries Services stepped in and said that if land remains in private ownership, and the use of that land would result in a take of the cranes, that take would be prohibited. They go on in the biological opinion to state what types of activities would result in a take. And they say any human activities such as noise, vibration, pollution, visual disturbance. What the property has developed by the Navy? Right. It was not that limited

. Well, obviously there's noise and vibration and whatever associated with whatever the Navy is developing. Right? Right. So obviously you knew that the Navy, what the Navy was allowed to do. So why would you take away that there's no way we can do this for anything because there's absolutely no noise, vibration, etc. I think because if you look at the documents as a whole, which were given to Schooner Harbor and relied upon Schooner Harbor, they're given from their own government, the Federal Wildlife and Fisheries Services. And I think taking a look at all these documents together, I even think, I don't think there is any way that one can look at these documents and think that any type of development would be allowed, whether it was the Navy or private entity. And I think in the previous appeal, Judge Newman hit the nail on the head when she stated reading these documents, she didn't have the impression that the Federal Wildlife and Fisheries Services was stating that if you're only building the 1808 units for the Navy, then mitigation property would be required, whereas if you're only selling individual 1A per lots, then no mitigation is required. There were no such caveats in the biological opinion. And I just think this is the clearest case where the futility doctrine should be applied. But how do you establish futility if you've never applied for a document? Well, I don't think that an initial permit is always required and not applying is fatal to the claim. And there are just times when opinions have been issued that I don't think an initial permit would always be necessary

. I think that's the point of the futility doctrine is to avoid unnecessary repetition. And that's kind of what we would have had here. Nobody looking at these documents would have said, well, maybe they will allow me to develop when they've already regulated the property and they've spoken in such broad sweeping language. It just is a practical matter. How would one, even if you've had the jurisdiction here, how would one ever calculate what damages you're going to be seeking? I mean, there's no plan here for how the property would have developed. We haven't identified the extent to it because you didn't ask for a permit. The mitigation efforts would have encroached on whatever profitable enterprise, the private property development would result in. So how could you ever pursue any kind of damages in this context? Well, I think that would get into the Penn Central analysis and the issue of what their reasonable back investment expectations were. And I guess at this point, the only damages that were there is that the scooter hardware was required to expend, I think it was $300,000 to purchase this mitigation property that the federal wildlife and fishery services had now regulated. But do it already. That's what we were seeking in the earlier case, right? And the federal circuits in the private appeal, right? Right

. And the federal circuits said no. The federal circuit said there was no, there wasn't even a property interest here, a cognizable property. So you're trying to recoup this 300,000 to the other door? Well, I don't think it's through the other door. I think the trial court just missed the issue. They stated that the property interest that we were claiming was taken was that we're not allowed to sell this piece of property to the Navy without mitigation property. And that's what was not what we were arguing. What we were arguing is that you're not allowed to sell this property to anyone without the mitigation. We weren't allowed to develop the property period without the mitigation property. I don't think we could have put a hut out there without being required to, I guess, whatever piece we used to replace that with some type of mitigation property. But once again, you never really know that until after you apply for the permit. Well, I think that's the absolute

. The absolute. You less could give you some kind of development. Well, I'm not quite sure what it is until after the permit has been applied for. Well, how can there be a regulatory taking of the property at that point in time unless there is a restriction which is imposed on the property on your particular point? Well, I don't. I just think that looking at the Navy's plans and the letters, although they were directed just to the Navy, I think the federal wildlife and fishery services, even though we didn't apply for a permit, they had issued this language that it specifically addresses private ownership. And if the land remains in private ownership, that a take would be prohibited. I don't think I see the. Is it? Do I pronounce it? Gerrassi. Yes, I got it wrong. Both the front and the end. Sorry

. They, I mean, you cite in your brief, the Gilbert case. And that case is, I think, helpful in that it collects at pages starting at page 60, various Supreme Court decisions dealing with the futility doctrine. And those cases seem to say the futility doctrine is a very narrow exception. And really, I think one of them states a property owner cannot rely on the futility exception until he or she makes at one, at least one meaningful application. Now, I will agree with you that looking at what was in the record here, what might reasonably conclude that, you know, it was unlikely that Fish and Wildlife Service was going to agree to some use without mitigation. I'll concede that, I think, for purposes of our discussion. But given what has been said about the futility doctrine, I don't think that is enough as a matter of law to let the property owner off the hook in terms of not having to apply. You still have to go through the process. Otherwise, the whole statutory regulatory process might be frustrating. Well, Your Honor, I think the Gilbert case is consistent with the Palazolo case when they stated that the filing of one meaningful application will ordinarily be necessary, although not alone sufficient precondition for invoking the futility exception. And I think it's consistent with Palazolo with the reason a degree of certainty standard, because these courts are recognizing that there may be times that a hardline rule that one permit application is always required, is simply not reasonable

. There are too many possible situations we could think of going back and forth where a permit application would just be a waste of time and resources. And that's what we had in this case. And I think there's no better case for this court to define or further develop the futility doctrine. And possibly if this is the rule that one permit application is always necessary, do away with that rule. I just, I don't think it's fair and I don't think... Well, I know we could do away with the Supreme Court's articulated. But not for us, Dr. Williams. Well, I don't think the Supreme Court has stated that one initial permit application is always required

. I don't think any case out there is factually similar to this case. If you're in the libudal time, you want to build it out for us. Yes, Dr. Williams. May I please the Court, Robert Lundman, Representative of the United States. Scudah Harbor's taking claim is not right here because they never apply for the incident and will take permit. Well, I'm just very right, though, that if you take a look at that issuance of those letters by the Efficient Marlotte Service, there's some language in there which really tells you that no matter whether you apply or not, we're going to require these conditions for the development of this property. Could that be transferred over to a section 10 application without too much of a problem? I don't really have to go through the motions of filing for the permit under 10. Is that required? I don't think you'll just be going through the motions here. I don't think that language in the letters or the biological opinion goes nearly that far. In the August 3rd letter, which is the primary letter they rely on, it says if the land remains in private ownership and use of that land would result in the take of cranes, that take would be prohibited. That sentence just states the endangered species that it's taken. The next sentence, though, is key. This is the one that Scudah Harbor doesn't dwell on. The only option for allowing take by a private individual that is incidental to an otherwise lawful action, such as development, would be a section 10A1B permit issued to the landowner. So that letter, which is the letter they hold out, is really most clearly supporting their case, explains to them expressly that they need to apply to it for a section 10 permit if they're concerned about restriction of private development. So I don't think the record here can support a dark claim that the Fish and Wildlife Service or anyone else ever stated that all development was prohibited. The biological opinion, as clear from its face, focuses specifically on the Navy's 188 unit proposed development. It does not work on what a private developer could do, alternative developments, the Navy had a specific goal in mind, and the biological opinion focuses on that goal and the impacts of that goal. So what about if they came and they decided what we want our private property development scheme is for 188 conducts. And essentially the structure is pretty much, at least environmentally, the way that Navy was going to go about doing their housing units. So that's their proposal for private property development

. That sentence just states the endangered species that it's taken. The next sentence, though, is key. This is the one that Scudah Harbor doesn't dwell on. The only option for allowing take by a private individual that is incidental to an otherwise lawful action, such as development, would be a section 10A1B permit issued to the landowner. So that letter, which is the letter they hold out, is really most clearly supporting their case, explains to them expressly that they need to apply to it for a section 10 permit if they're concerned about restriction of private development. So I don't think the record here can support a dark claim that the Fish and Wildlife Service or anyone else ever stated that all development was prohibited. The biological opinion, as clear from its face, focuses specifically on the Navy's 188 unit proposed development. It does not work on what a private developer could do, alternative developments, the Navy had a specific goal in mind, and the biological opinion focuses on that goal and the impacts of that goal. So what about if they came and they decided what we want our private property development scheme is for 188 conducts. And essentially the structure is pretty much, at least environmentally, the way that Navy was going to go about doing their housing units. So that's their proposal for private property development. Could they not safely assume under that circumstance that they would get precisely the same answer that you received for your 188 family. I don't think they could make that assumption because they'd be moving forward under section 9 and 10 of the ESA and not section 7. And the Supreme Court in the ballot case says that section 7, and that's what applies to the Navy, imposes a broad affirmative duty to avoid adverse habitat modifications that section 9 does not replicate. So right there, the Supreme Court has explained, you can't simply equate the section 7 consultation process to avoid jeopardy and to avoid critical habitat impacts. So you think the government is that is structurally going to be more generous to a private property developer than it is to its own military? Well, there's what you're suggesting, right? There's two points. One is, section 7 imposes more strict requirements in some sense with respect to protecting critical habitat. So the Fish and Wildlife Service would be imposing a different set of law. Second, it's impossible to know in the section 9 and 10 process is an iterative discretionary one. The developer comes to the Fish and Wildlife Service and says, here's our permanent application, here's what we want to do. It's not just a yes or no stamp process, but rather the Fish and Wildlife Service assesses the impacts of that proposal on the species. And then there's dialogue that tries to work out what's the best way for the project to go forward without too much take of the species so that we prohibit under section 9

. Could they not safely assume under that circumstance that they would get precisely the same answer that you received for your 188 family. I don't think they could make that assumption because they'd be moving forward under section 9 and 10 of the ESA and not section 7. And the Supreme Court in the ballot case says that section 7, and that's what applies to the Navy, imposes a broad affirmative duty to avoid adverse habitat modifications that section 9 does not replicate. So right there, the Supreme Court has explained, you can't simply equate the section 7 consultation process to avoid jeopardy and to avoid critical habitat impacts. So you think the government is that is structurally going to be more generous to a private property developer than it is to its own military? Well, there's what you're suggesting, right? There's two points. One is, section 7 imposes more strict requirements in some sense with respect to protecting critical habitat. So the Fish and Wildlife Service would be imposing a different set of law. Second, it's impossible to know in the section 9 and 10 process is an iterative discretionary one. The developer comes to the Fish and Wildlife Service and says, here's our permanent application, here's what we want to do. It's not just a yes or no stamp process, but rather the Fish and Wildlife Service assesses the impacts of that proposal on the species. And then there's dialogue that tries to work out what's the best way for the project to go forward without too much take of the species so that we prohibit under section 9. So that process could very well result in a different answer for a private developer or a different answer for the Navy. But isn't that the same process you have in the section 7? There is a given take trying to take in the sense of negotiation, right? In a particular requirement of the statute, but if you have the Navy that wants to develop a piece of property, they do sit down with FWPASS and say, this is what we want to do. Why don't we see what can be done in order for us to get a permit? I mean, it's the same process that would happen under 9 and 10. There's negotiation, there's informal consultation and back and forth under section 7, there's the process I described in our section 9 and 10. So in the sense that there's negotiation and discussion in both, that's right. The finish lines are not the same because the ESA assesses forth a different standard under section 7 and a different standard under section 9. So that's the first difference. The second difference. I wonder if that is a different standard, not the language is very similar to it. Isn't that the take language the same? Well, take us prohibited both for private individuals and the federal government, but section 7 imposes the additional no jeopardy, avoid jeopardy and existence of the species, and also that it has a critical habitat prong that is lacking in section 9. So the substance is different

. So that process could very well result in a different answer for a private developer or a different answer for the Navy. But isn't that the same process you have in the section 7? There is a given take trying to take in the sense of negotiation, right? In a particular requirement of the statute, but if you have the Navy that wants to develop a piece of property, they do sit down with FWPASS and say, this is what we want to do. Why don't we see what can be done in order for us to get a permit? I mean, it's the same process that would happen under 9 and 10. There's negotiation, there's informal consultation and back and forth under section 7, there's the process I described in our section 9 and 10. So in the sense that there's negotiation and discussion in both, that's right. The finish lines are not the same because the ESA assesses forth a different standard under section 7 and a different standard under section 9. So that's the first difference. The second difference. I wonder if that is a different standard, not the language is very similar to it. Isn't that the take language the same? Well, take us prohibited both for private individuals and the federal government, but section 7 imposes the additional no jeopardy, avoid jeopardy and existence of the species, and also that it has a critical habitat prong that is lacking in section 9. So the substance is different. But does the government's position here rest exclusively on that? I mean, assuming even that that will reject it, assuming they were just wondering what the two predictions are identical. Would you still have an argument here that we don't know if they were going to develop? Yes, I was forward with the case and draw conclusions about the end result when you know what the extent of development is. That's the other half of the argument. So the first half early until they come to the government, come to the Fish and Wildlife Service with a proposal, there's nothing to assess and begin this discretionary iterative negotiation. So it could be, it could conceivably based on the language of the letters, be a proposal they came up with, a hot or two or whatever, where the mitigation costs to the extent there might be some might be minuscule, right? Right, we just don't know. They could propose something where more mitigations required, they could have proposed something where less mitigation is required. Well, I think it's clear that they could take away from the letters that some mitigation would be required. Do you think that's clear? I don't think that's clear from the letters at all because the letters simply don't address anything but what the Navy was suggesting. If there were letters that directed the Schumacher Harbor, that Schumacher Harbor said, hey, can we do this in the Fish and Wildlife Service that will find on it, we'd have a very different case. We don't have any of that back and forth between Schumacher Harbor and the Fish and Wildlife Service. It's all between the Fish and Wildlife Service and the Navy with Schumacher Harbor attempting to complete its sale to the Navy

. But does the government's position here rest exclusively on that? I mean, assuming even that that will reject it, assuming they were just wondering what the two predictions are identical. Would you still have an argument here that we don't know if they were going to develop? Yes, I was forward with the case and draw conclusions about the end result when you know what the extent of development is. That's the other half of the argument. So the first half early until they come to the government, come to the Fish and Wildlife Service with a proposal, there's nothing to assess and begin this discretionary iterative negotiation. So it could be, it could conceivably based on the language of the letters, be a proposal they came up with, a hot or two or whatever, where the mitigation costs to the extent there might be some might be minuscule, right? Right, we just don't know. They could propose something where more mitigations required, they could have proposed something where less mitigation is required. Well, I think it's clear that they could take away from the letters that some mitigation would be required. Do you think that's clear? I don't think that's clear from the letters at all because the letters simply don't address anything but what the Navy was suggesting. If there were letters that directed the Schumacher Harbor, that Schumacher Harbor said, hey, can we do this in the Fish and Wildlife Service that will find on it, we'd have a very different case. We don't have any of that back and forth between Schumacher Harbor and the Fish and Wildlife Service. It's all between the Fish and Wildlife Service and the Navy with Schumacher Harbor attempting to complete its sale to the Navy. So, Muslim, there were no, so I'm clear in this, there were no face-to-face dealings between Schumacher Harbor and Fish and Wildlife Service. Correct. I don't know if there ever were any discussions at all that there was no. The record is clear and there's a declaration at the end of the Joint Appendix. I don't have the right page from the Fish and Wildlife Service saying, we never discussed Section 9 or Section 10 with Schumacher Harbor. Schumacher Harbor wanted the sale to go through. They asked the Navy to push forward. They asked Fish and Wildlife Service to hurry up and complete the sale to the Navy. Schumacher Harbor provided these letters by the Navy because of its negotiations with the Navy for the housing project. I'm not sure the exact mechanism of how Schumacher's sale of the property. But they provided because Schumacher Harbor was asking the Navy, please push the sale through and the Navy and Schumacher Harbor both for the Fish and Wildlife Service, please hurry up and issue your biological opinion because once that's been issued then we can complete this deal

. So, Muslim, there were no, so I'm clear in this, there were no face-to-face dealings between Schumacher Harbor and Fish and Wildlife Service. Correct. I don't know if there ever were any discussions at all that there was no. The record is clear and there's a declaration at the end of the Joint Appendix. I don't have the right page from the Fish and Wildlife Service saying, we never discussed Section 9 or Section 10 with Schumacher Harbor. Schumacher Harbor wanted the sale to go through. They asked the Navy to push forward. They asked Fish and Wildlife Service to hurry up and complete the sale to the Navy. Schumacher Harbor provided these letters by the Navy because of its negotiations with the Navy for the housing project. I'm not sure the exact mechanism of how Schumacher's sale of the property. But they provided because Schumacher Harbor was asking the Navy, please push the sale through and the Navy and Schumacher Harbor both for the Fish and Wildlife Service, please hurry up and issue your biological opinion because once that's been issued then we can complete this deal. So, that's the context in which the letters were provided to Schumacher Harbor. But the letters themselves and the biological opinion are clearly not addressing a private development. In terms of cases, you're honor mentioned, the Gilbert case from the first circuit, there's two pieces of the language that are critical there. One is the court says you have to have at least one permanent application in Gilbert. We don't have any here. The second piece is, and I'm quoting, a sort of inevitability is required. And the record doesn't come anywhere close to showing a sort of inevitability with respect to what would happen with respect to private development plans. Finally, about calculating damages in the amount of the taking, that's the point. And the Supreme Court has said you need to apply for a permanent in these circumstances so that we, the courts, can determine whether the regulation has or has not gone too far. And doing that tricky, pen-central multifactor analysis requires a record that the court can look at and say, oh, this goes too far, this doesn't go too far. But we just don't have that background here

. So, that's the context in which the letters were provided to Schumacher Harbor. But the letters themselves and the biological opinion are clearly not addressing a private development. In terms of cases, you're honor mentioned, the Gilbert case from the first circuit, there's two pieces of the language that are critical there. One is the court says you have to have at least one permanent application in Gilbert. We don't have any here. The second piece is, and I'm quoting, a sort of inevitability is required. And the record doesn't come anywhere close to showing a sort of inevitability with respect to what would happen with respect to private development plans. Finally, about calculating damages in the amount of the taking, that's the point. And the Supreme Court has said you need to apply for a permanent in these circumstances so that we, the courts, can determine whether the regulation has or has not gone too far. And doing that tricky, pen-central multifactor analysis requires a record that the court can look at and say, oh, this goes too far, this doesn't go too far. But we just don't have that background here. And so the claim is not right. Even if there were no time bar here, can they go in now and ask for a permit? They don't own land anymore. They don't own land, I presume nobody would process a permit for someone who's not a landowner. That's right. They don't own land anymore, so they can't apply for a permit for us since they don't have the land. There's no standing for them who apply for the permit. Right. So unless the court has any further questions, I'm afraid my brief. Thank you. Thank you. Well, your honors, I think an important point to address is that with all these documents, the federal wildlife and fishery services knew that Schooner Harbor was receiving these letters and documents, and of course would be relying upon them

. And so the claim is not right. Even if there were no time bar here, can they go in now and ask for a permit? They don't own land anymore. They don't own land, I presume nobody would process a permit for someone who's not a landowner. That's right. They don't own land anymore, so they can't apply for a permit for us since they don't have the land. There's no standing for them who apply for the permit. Right. So unless the court has any further questions, I'm afraid my brief. Thank you. Thank you. Well, your honors, I think an important point to address is that with all these documents, the federal wildlife and fishery services knew that Schooner Harbor was receiving these letters and documents, and of course would be relying upon them. It was coming from their own government. I think every United States citizen has or should have the ability to rely upon an opinion that's given to it by its own government. But it was not an opinion given to use, an opinion given for the benefit of the Navy. Correct. But the biological opinion when it addresses human activities, I know of no difference between the Navy's human activities and Schooner Harbor's human activities. I think we're all human. We all make noise, vibration, pollution, visual disturbance. I can't think of anything sitting here right now. Isn't it certainly possible, Mr. Grayson, that you might have a situation where a private housing development, I think Judge Prosper, for decondominiums, would generate or could generate a lesser environmental intrusion, if you will, than military housing. I don't know if that's the case or not, but it might not be, but doesn't that suggest a reason why going through the application process would be necessary? I think under normal circumstances had no one ever reviewed the property and looked at its uses or proposed uses

. It was coming from their own government. I think every United States citizen has or should have the ability to rely upon an opinion that's given to it by its own government. But it was not an opinion given to use, an opinion given for the benefit of the Navy. Correct. But the biological opinion when it addresses human activities, I know of no difference between the Navy's human activities and Schooner Harbor's human activities. I think we're all human. We all make noise, vibration, pollution, visual disturbance. I can't think of anything sitting here right now. Isn't it certainly possible, Mr. Grayson, that you might have a situation where a private housing development, I think Judge Prosper, for decondominiums, would generate or could generate a lesser environmental intrusion, if you will, than military housing. I don't know if that's the case or not, but it might not be, but doesn't that suggest a reason why going through the application process would be necessary? I think under normal circumstances had no one ever reviewed the property and looked at its uses or proposed uses. Then I think yes, that's the purpose of the permit application. If I just walked off the street and no one had tried to develop the property and asked the wildlife and fisheries services for an opinion, then I think they would ask me what type of development are you doing, and then they would tell me the possible effects. But I think when the Navy had already been there and had already negotiated with the Federal Wildlife and Fisheries Services, and they issued these opinions stating that all remaining acreage will be indirectly impacted and completely lost as suitable habitat for the crane. I understand that, and you're correctly referring to the record, but what I guess I'm trying to say is, isn't it possible that a 180 to 188 unit private condominium sort of plan might be viewed as less of an environmental issue than a 180 to 188 unit for the human rights. Military housing. I think that's possible, but I still think the mitigation property would have been required regardless of what was being made less mitigation. Possibly, and I think that's an issue if you get past the rightness issue, then I think that's part of the pen central analysis. But you got to get into the door first to get to that, and I think that's where we're at now, and the property was regulated once the parties all knew that there would be no development without mitigation property. And I think what the government's just trying to do is now say that because we issued these broad sweeping regulations, and now that you filed suit for a takings claim, well maybe we were told you something different. And I just don't think that's fair, and I think Justice O'Connor has stated that concepts of fairness and justice underlie the takings clause. And then therefore, if there's no more questions of the court, I was told always to ask for the relief that you seek, and I would ask that the court apply the correct standard in this matter and reverse and remain for trial for the pen central analysis

. Thank you very much. Okay, so submitted