leave your orders we're dealing with regulations that can be very confusing and people take different views of them but this is actually a very simple matter in this case mr most at posits that it was unfair of the government to prosecute him for doing what it allowed him to do well in what went with respect  permit that he was operating under had aid a determination date and when they found him doing things that were not permitted it was after the permit had expired so he was like he was out there with no right whatsoever to do anything doesn't that change our analysis here no your honor it's the activity that was charged was all charged acts with the exception of count seven as occurring no later than october there was no specified date they did not charge him specifically with doing anything except failure to winterize after the terminations date of october fifteenth the only count that has a realize as a technical that it was it was failing to back fill the holes that they are there is a charge that is a violation of the term of the operating plan there's a particular problem with that charge that's different from the other issues which is that the only hole that he excavated is this hole that the government at trial labeled habitat pond that is basically site g e on the map but that's the only holy excavated and that was a hole  do you agree that with respect to that section g the hole in the pond i guess it was actually that by his failure to back fill that or what is his back filling that or whatever  was supposed to do and the permit had expired that he had knowingly violated the law no the reason is that g and the map is that th excerpt of record second volume up when sixteen or at the supplemental at two forty three this site these are the three sites that he proposed excavate site g is i've circled it but there's a circle around  g it's marked in the center of the pond this is what they called habitat pond and the entirety of the testimony was a complaint about the fact that he dug in habitat pond that  seven charged him with failing to back fill the pond but all the witnesses testified that they never wanted him to backfill that pond they didn't want him there they said that they didn't want him to dig there the first place which is contradicted by  so he was even though the plan required him to back fill excavations the only excavation that he engaged in was not one that anyone desired him to understand my understanding was he wasn't to do anything in that pond at all he was supposed to stay away from it that's wrong that's wrong that's wrong ok that this is this is this is where i'm afraid that the court will get tangled up and i hope the court also that you spent with your anything in his permit one way or one way or the other it related specifically to that point there's nothing in the text the map identifies that as one of the three excavation sites the map is the extent of that's that the thing that marks what he was asking to do what he was permitted to do by the district traitor and at trial various inferior officers the minerals officers all said no no no we told him we couldn't do that we only met this x which is next to the g that was we told him that none of that really matters the district ranger approved him to conduct activities and consisted with this map and the map clearly marked as proposed x given there's something in writing to that effect yes the district leaders approval now this is not just of the court crawl right i'm sorry this is a court trial not a jury the the answer is more of a pragmatic one i think the government crafted this case to give a great deal of i appeal to it so very regional one i appeal i see more emotional appeal so they took this old mining site that existed in the one thousand nine hundred three that was a dig hole and they called it habitat pond and then they called two witnesses great sympathy dave brown who were minerals officers to testify that notwithstanding the map that clearly identified the pond as the place that mr most had intended to excavate at the place it had been proved approved for him to excavate by the district ranger they both justified it did the magistrate judge make some kind of rulin contradictory testimony there was a video that was played for him in which mr sympathy who was the prime witness insisting that he had not authorized mr most ed to dig in that big hole was heard to say we authorized that so mr shippey was cross examined about that he claimed he didn't remember it but there was a video showing us excerpts quotations from that and his testimony about it and following up on my colleague here i my notes suggest that the two thousand and eight plan  had the revised map showed somewhere that bordered on pond g in the magician areas but not within them and that the authorization was for a limited geological sampling without the use of goes along along that same line the initial plan did not allow water but in june or july there was a supplement that was authorized by the district ranger to allow mr boat steady use a wash plant that was on site that's thought that certainly by the time of the two thousand and nine plan your client was not supposed to be digging in the pot you're saying that's wrong let me let me make it clear i'm using my copy the whenever the supplemental extra i just because it was in color if you look at the of the conditions of approval there are page two forty five and what they say is that in the third paragraph this is page two for description and scope of operation sampling i believe your gravels utilizing the onsite excavator will involve opening test holes as shown on the attached site map to bed proposed excavation sites number one is g so again i think that there was a trial that the government succeeded in in shifting the focus from the plan of operations that had been approved by the district ranger and the map itself and allowed the minerals officers to say that only oh no no we told him something but under the regulations to twenty eight and to sixty one the plan itself is what mr it was what becomes a measure of what mr most that is so bottom line from from your perspective the plan as amended permitted your client to dig in and use the pine what about the vegetation area alongside they charged him with damaging the right period vegetation but the plan itself allowed him to dig up to three holes down to bedrock which would have been fifty feet he never dug that far in the process of doing that he is going to be removing vast amount of minerals there is nothing in the plan that says where he should put it or where he should not put it and the point and you know the plans were approved or these were just proposals so these were these were approved by the district ranger d the attention of the magistrate judge and perhaps the district judge as well is that a plan of operations exists specifically to authorize minors to do things that other users of the force would not be allowed to do that's recognized in the part two sixty one prohibitions into sixty one point one small a which says specifically that forest officers may allow persons in plans of operations to do things that would otherwise be prohibited in this case it's essentially the forest service allowed mr most dad to make an omelet but then they complained that in the process of doing so he broke several akes it simply can't be as a matter of fairness that the district ranger approves a plan for him to dig fifty feet down to bedrock and remove the intestine gravels on the opposite side of the river or the opposite side of the stream from where he's excavating and then complain well you dumped those tealeaf things on vegetation of course he's going to dump the tailings and the station of course he's going to cause surface resource disturbance that's why he's applied for a plan of operations and that's why the ranger has proved it let me you know other thing obviously your perspective of the controlling documents and that of the government is entirely different i mean they couldn't be more different if i can get your and your understanding of this let let's just say hypothetically that there was no disagreement about what your client could do or not do up to a certain time period  that he continued to do what he was bar doing after that time period and then they charged him would you agree that if that happened the fairness argument really goes away because he would be doing what he was doing beyond the plan of operations and the mining activity all occurred between march when the plan was approved and october so as as of the time of the inspection there's simply no evidence to show that those tailings were pushed there after the plan ended and the original plan which was supplemented but not over overturned ran through october thirty first the original plan that was provided read through october thirty first i'll save the rest of my please the court robert our choose representing united states yours like the first address the issue of habitat pond and the various maps that were drawn the record does show that there were various  maps particularly at s c r two forty three was a map that was originally drawn by the defendant and that clearly shows and acts right in the middle of pond that's that site labelled g indicating that it was the defendant's intent to mine in that area and there was testimony presented at trial that the defending the forest service had extensive discussions about avoiding that particular area because it was a habitat for wildlife not only boarding that area but also avoiding for perry and education surrounding the river which was important to protect the river pollution after that discussion there was another revision to the included no you are there is extensive testimony at trial that that was discussed with the forest service forest service and the defendant and the forest service made it very clear that to defend it was not supposed to disturb that pond and not supposed to disturb the areas around the river because you know this is a this is a permanent he asked for the permit he proposed a map are you saying that that permit never became and this is also in two thousand and eight that there were several iterations and some of them were rejected like particularly the the plan at two thirty two where there was an x in the middle upon that was rejected and then the defendant revised the plan to move that x to the south east of the pond away from the pond evidencing that there was a discussion and there was a decision made that he was supposed to mine an old they call it was approximately one hundred fifty feet away from the pond and that's testimony as you are one of six to one of the seven area away from the what i want to know is what what was in the documents was there ever a time that you the two thousand and eight or the two thousand and nine plan allowed the defendant to mine or otherwise use the pond know you are the plan the two thousand and nine approval which referenced the revised map the reason there's an x on that map that's away from the pond indicating that where he was supposed the mine was not at the map that's was it was consistent with the approval at two forty three does show areas that were used for dumping mine ways that's areas a and b and any of that include part of the vegetation area or the pond no y was away from the pond and also way from the river riparian vegetation that surrounded the river and the defendant disregarded those areas and decided to dump his mining ways where he thought it was convenient which was on top of education that was there to protect the river and also possible on line and this is the way i understood it for your opponent started talking to us the government claims that you had permits  and i guess in two thousand and nine that did not permit the defendant to utilize the pond or the vegetation area and there were certain other aspects of it that the i think was what october the fifteenth that all had to be finished yes right now there's he said as we go through october thirty one what's your point to that yes are so at some point the defendant applied to modify and to mend his prior plan the prior plan was for you said thirty first to get it out of there with the mining in the winterization was supposed to be complete in the fifty's where there's nothing in there that talks about him removing his quick meant and getting his cock is shelters out of there that it is a very to say that that aspect of the offense you can't charge somebody criminally unless they know what the event is what is clear in the plan is that he was supposed to have all the holes back filled by the fifteenth that is in the plan and that's what he did not do because there was a hole  in all mining hall where he was authorized to dig about southeast of the high of the pond and he in fact did dick there and when the forest service inspected that area on both october twenty first and the thirtieth that hole was still there not only was out hole there he had legs in the vegetation area of the holes were supposed to be filled in by october the fifteen yes so that was clear from your perspective i'm a little concerned about this october thirty first date what thirty first of october it doesn't that the plan does not specify that but it allows him for example to occupy that area up until the fifteenth but it is not the plan to not allow him to mind that was very clear well is that what it potentially but it it i think based on the discussions the testimony the discussions between for service in the senate it's apparent that one of the things you're supposed to do in that timeframe between fifteen in the thirty first was to get out of in the in the revised plan when he sought to modify his plan to switch from dry operations to what operations is unique and says very clearly in the plan in bold separate from the other text in that letter that he had to be completely finished with those operations where the fifty thought fifteenth of october and those were the what operations and when for service went out on the twenty first of october he was engaged full scale mining not only doing doing what operations but going far beyond the geological sampling that he was supposed to be limited to under all of the plans he wanted to skip over all the permanent permanent all the sampling and jump straight to full scale mining because he wanted he wanted the gold in that in those those rocks and that's why he was cited for numerous violations because he exceeded the scope of his plan his plan is what operations plan was expired and he continued to mine and in fact the record shows that he was confronted with these issues and he told the fo service that he was there they had no authority to regulate him there and he was not going to listen to the district district ranger he was going to listen to a consultant that he hired separately to advising them on these issues and so he made very clear that he was not interested in  defense case here the case here is notice and the defendant was given notice at various stages of his mining operations and also after the expiration of his plans not only through the plans themselves and his discussions with or service but he was told virtually on the twenty first of october that what he was doing was illegal and he needed to stop and he refused to do so and then on the thirtieth the forest service came back again at that top time to get in the desist letter and told him that with written notice that he was violating the terms of an expired plan and he had to be out of there and he was also told at that time that he was to submit a restoration remeet remediation plan to the district ranger in an effort to try to work through these issues and try to restore what damage he had done and he refused to do that as well and the team went back in january well after the expiration of these plans and he still had his equipment out there in fact at that time is when they saw one of the excavators leaking significant oil near the downy river those are january january two thousand and ten and then he was charged he wasn't charged by information by my office on told july two thousand and ten so the evidence presented at trial shows that he was given notice at numerous stages of this process both at the time that he was actually mining sheeting the scopes of his plan and also at the time they did two inspections in october and they actually witnessed him doing things outside the scope of this plan so there's sufficient there's sufficient evidence here to show th it was given adequate notice not only prior to the charges that were brought in this case but also after the charges were brought he was allowed to present his administrative defenses in for the magistrate judge and try to argue that he was treated unfairly or that what he again i write i reiterate that i think it's really unfair of the government to put the burden on mr most that by forcing or by charging him with criminal violations for work that in hindsight the fore the test sample is under the fifty feet of rock that she allowed him to remove then you're going to have to remove a lot of dirt to get down to that place you're looking for a gold mine so you're looking for gold he's he's he's basically  was allowed by the plan specifically to dig down to bedrock you've got to remove a lot of dirt and a lot of rock to get down to bedrock so i mean that's it's unavoidable it's you can't make an omelet without breaking eggs and so he may have broken more eggs and they which they required to do they showed up late october and they said oh my god you're doing all these things that we don't think you should be doing but he was specifically allowed to do it by the plan the next give me to charge you it is an example there was just a question about that the excavator was found to be leaking in january so they charged him with leaving it there in october but in the cease and desist notice that they gave him when they went back at the end of october they told him don't move the excavator this is just not authorization was that he didn't back after october fifteenth that's the only thing that specifically references any language in the plan but the thing that he did backfill was the thing that they claimed they didn't want to back fill they didn't want  that they said well we didn't want to figure it all but the map specifically allowed him to do that and there was no intention for service to have that backfill other question for my colleagues noting that thank you very much