specifically themselves intend to do this case has always been based upon what that hypothetical reasonable miner would intend to do so in that respect our our position would be consistent with yours we're trying to pursue an objective addition to that dismissal of the contest and again this is why the i don't use the two authors of the original decision made it very clear to point out that now that what they're suggesting is not the patent issue at this point in time but at least my clients labor rate was considered reasonable that rate was higher than what exhibit thirty five indicated and what the the judge granted responded in their initial decision let's take my client's labor r was even higher than the middle examiners take that and the twenty five percent to that factor so in effect as to that labor rate you've got something that neither party argued was higher than anybody had had had argued at all in these proceeding waters are still going to lose money and i think if you look at the record that's just simply not the case and i think the only way that you can get there and if you read the images even the majority decision of the idea well i think it's consistent with this point is the only way that you can come to the conclusion that the claim is is reasonably likely to lose money is in the event that you include reserves that are probably not going to be economically beneficial in effect what i understand the united states argument to be is we're going to make you mine portions of the plane that are going to lose money so that your claim is going to be invalidated and there's nothing in the mining law that requires you to do that you can select the segments of the client that are that are appropriate to mine pursue those and then until you've done for prospecting or whatever else you think you've you need to do price of gold goes up mining cost go now whatever it may be you don't need to include those reserves in order to number one to substantiate this position that even assuming that the that our argument is correct use the waters with still little hundreds of thousands of dollars i don't believe that that's justified at all in this record and i don't think that even the majority of the ideal way  endorsed that kind of reasoning they simply suggested that the that the arguments of the united states might cast doubt well with all due respect to the agency we're not in a cast doubt standard or a preponderance of evidence standard and here as the the ideal way to spend it made clear we've got under our analysis under the findings of fact that we made in our in our initial decision if we correct it for this inadvertent error that we've exhibit thirty five and you'll see from exhibit thirty five that the mineral examiner himself was was a was arguing was a piling that the labor rate that should apply here was somewhat even with the the twenty five percent surcharge was going to be within the range of what the water's labor rate was that was included in their in their supplement again the wires were saying thirteen seventy five an hour for up and the equipment operator five dollars an hour for general labor if you go through exhibit thirty five you'll see that the middle examiner broke that down in terms of the kind of labor rates that he would charge based upon the species of reserves that you're didn't attribute of a hypothetical percentage correct what that what the argument of the united states is is that you have a particular hourly wage rate to which you add a labor overhead cost component what about what  that we have a valuation of of labor which is set forth in the supplement to work to our patent application that says we expect the value of our labor to be at thirteen seventy five an hour for heavy equipment operator and five five percent factor does not it doesn't even apply here so if you take that twenty five percent factor out of the the the numbers that he was using in exhibit thirty five there you've got a number that's probably artificially low you go back and you look on this nine hundred ninety oregon statistical wage rate summary and and it's in the record is not clear at this point in time that that doesn't already include that twenty five percent factor were what the factor would be here again we'd be talking about the fringe benefit factor we're not talking about unemployment taxes workers compensation and so security we're talking we're talking about the idea that there might be additional fringe benefits that that would be necessary in order to value the mining claim it's personal really it's an excellent question the basic my understanding for what the way the rule has always been is that you have to break certain mining claims up and into i don't recall whether it's a ten acre parcel or a twenty acre par that if you have an area that's rich in an area that's less rich or on the other hand is more costly to mine you don't have to go mind that area in which you're going to to run much less likelihood of making money now the factor will come what's wrong with that well it would really do irreparable damage to the mining the bought a whole concept behind this if you if you require the mining claim to show that you're absolutely going to be profitable on every square foot even if you know there's all obviously a variety of different physical conditions that might exist out there if that was the standard it would be extremely difficult in many many circumstances to for anybody to ever be entitled to pat in the first place and again that's why this require that you mind those areas that are not economic if we one of the in fact a dry hole there's nothing that requires us to go you know burn up every last nickel that we have to prove that it's a dry hole when fifty yards away we've got and there are lots and lots of others that just aren't big enough for an international company to put capital into but they provide good livings for single men and couples families  maybe have a family with a few hired hands gosh i know some of those people some of them make six figures and are twenty years in prison and if so if it's that kind of mine if it's real small mind richest deposit and i don't see what the just the kitchen is for saying in order to determine whether you can explore your profitably we're going to projected lever costs three would be unprofitable all three areas the virgin gravel the screenwriter gravel all three would be unprofitable with the twenty five percent over charge but in addition then when you get get to the next like your honor and i just wonder whether it makes any difference because it would seem that there is going to be some kind of work related insurance that area that economically has to be built into it to determine profitability whether it's think so i think that the way things have been evidence that it would be profitable is assuming that their leverage for fifteen dollars an hour for it wouldn't be profitable but it strikes me that a lot of people would be very  mind deciding whether to my claim and he says well i can make forty thousand a year or i can make twenty thousand a year in wages and twenty thousand a year in profits and my wages will be over  you i could just make a couple of brief points i'd like to clarify that no time to judge white's are in his decision ruled that those other two areas of the reserves could not be economically mind with his ruling was i can't even consider those whether they can be been criticized quite a bit for but the idea of a majority status is a steadfast refusal to provide evidence and that's just simply not supported at all by this record no no less than three times during the course of both the  elgin hearings as well as before and the idea like we asked for the opportunity to introduce new evidence not specifically on this later overhead factor because again we had prevailed on that issue and all three times including the denial the