may please the court my name is larry albert here on behalf of pellets dennis stacy and pelham jackson in this matter this is a public lands case that concerns a stone deposit in that you got national forest of alaska which my clients located as a mining claim the general issue presented is whether the stone deposit cost two to locatable mineral under the public land laws appellants contend the deposit qualifies as a the government contends the deposit constitutes a common variety of material pursuant to one nine hundred fifty five amendment to the general mining law following introductory points are made as appellants my clients have the burden of proof in this case so we necessarily had to address the district court's decision below the government's brief instead it was devoted to defending the decision of the interior board of land appeals as a practical matter both because it seems to me at there are two issues here which the deference is pretty important determinant the first one was whether the government established a prime a face case if i'm to give deference to the i b l a in suggesting that the government did establish a prime a fake case and i've got to say you've got to find clear air in what they determine on matters of fact if it's for applying the substantial evidence standard and there's no dispute here that's a substantial evidence and the same would be then on whether they erred in finding that stacy failed to show that the building stone was an uncommon variety as to fact i would have to find that you would have to say they had the i b m lay committed plain error on matters of fact our principal argument however is that this appeal can be decided on matters of law we had brief that extensively below and i'm prepared and that's been briefed in our opening and apply brief to this court and but i gree that that the standard of review a found as to the government's established in their prime a face a case was there what legal theory do you have in my book there is no legal theory  than me trying to see based on united states versus multiple you have to determine whether the government established a prime aphasia case and the first their prime aphasia case i've got to determine whether spencer stone is number one a stone number two had a valuable comparable to other stones and number three had no use that commanded a higher price and i've got to find whether the government had a prime a fake case and i've found based on what's in this evidence are this record i cannot suggest that the i erred that the government established their prime aphasia case we respectfully disagree your honor that i know so what legal theory is their legal theory is that there's multiple sources of authority contest concerning building stone the comparison should be to either sand or rip rap and we have distinguished rip rap from armor stone there's extensive discussion and references to the record as to what armor stone is now i've cited to an illustrative photographic page for forty four of the excerpts armor stone are huge boulders the size of this lectern rep rip rap is small material that i could sit and i could physically lift up  place on top of the rope the lectern and that photograph shows both armor stone and rip rap and multiple use clearly stated and i think both sides recognize the multiple that the three part test that has to be applied in the prime of face a case to arise from multiple and multiple use gave guidance in the matter of law that you should compare the contested stone deposit to rip rap that was not done by the government instead the government compared armor stone to armor stone that's the one source of authority the second source of sortie pick an iron which we have briefed it was not a stone contest case but it stands for the proposition as a matter of law that the government has a burden in a prime a face a case that the government must compare the contested deposit to offer of a comparison of chemical grade line stone to limestone and it can iron the district court said no that was wrong as a matter of law and therefore the prime official case should have been dismissed that's exactly our argument in this case we realize that pick an iron is not presidential authority it's only a district court decision in the district colorado but if we think it's on point and we think it's persuasive as a matter of law i have a tough times adjusting that the district court case in colorado is somehow instance the government will have a chance to respond there i'm interested that you put up the colorado case because i didn't see that as a law that the i b l e needs to follow it all that some district judges best  idea i recognize it's not presidential authority but we don't have there's a paucity of authority dealing specifically with this issue but i'd like to give my all we don't and that's why it didn't seem to me in these particular areas because we really don't have presidential authority given that there's another argument i think that's important here in responding to your question about standards of review in fact finding and whether there was clear air the very  made which the government because there were many arguments we made an opening brief which the government ignored and failed to address and the important one in regard to the prime official case is that in the three proceedings below before the a lay and finally in the district court my clients argued that the mineral examiner who was the chief witness on behalf of the government in the prime aphasia case admitted on cross examination that the deposit comparison should have been armor stone to common variety material to all types of rock and not other armor stone there was a colloquy on that we've reproduced out in the briefing district court room to produce that in the excerpts of record we've argued that consistently and the government refuses to even acknowledge that we consider that to be an admission cement tiriel admission and we've cited i b l a precedent for the proposition that if the government uses an incorrect legal standard in the prime aphasia case that warrants dismissal and i think pick an iron is consistent with that principle of  precedent on this court and that the interior department for the last thirty years purports to follow mclarty and specifically in it a problem getting to rule in two thousand and three that incorporates the mclarty factors and we think that i've been just to be clear  those factors are not part of the premise basic correct well that's another argument we made but i'm right i know what i'm trying to find out are you still standing on that yes yes we think we think that the market mclarty factors are part of the private face of case we think that it makes sense that right your argument you're just making is a good argument for your side one you want to make but the bottom line is there's nothing that suggests that's part of the prime faith case no case i agree there's if you look at there's little use that you can find that there's no authority either way there's no authority either from the i belabor or from the court district courts saying that the mclarty factors do affirmatively apply to the primary for case and there's no authority that says it has authority in multiple use as to what i suggest if you want to waive the argument that's fine i'm just you know it's one that you made and that's why i asked you if you were still resting on a yes yes we are yes and my question was is there's multiple you sets out the factors but to adapt your argument i'm looking for something else that would say either there's more factors or different factors or it's nuanced very seriously recognizes the multiple use sets out a three part test that test was not applied  in proceedings below also multiple you specifically stated and i repeat they provided guidance that in building stone contests the comparison should be to stand a rip rap that was not done here and we think that that pick an iron good although it's a district court decision pick an iron applied the multiple uses three part test it did not expressly apply the mclarty factors but it applied the multiple used to be part test and said that the government did not properly apply the three i believe decisions over the last thirty years of an arbitrary and capricious as a matter of law in applying the mccarthy factor regarding deposit comparison and unique properties some of the cases say that recognize what we' characterized as a logical fallacy you can't compare the contested deposit to materials that are exactly like or similar to the contested bahasa because you need collapse into a circular analysis of what what what would be a unique property versus what's not unique property so there's precedent for the proposition that you can that if you have established a unique property with a contested deposit then the comparison must be to other materials that lack that unique property there's other cases which the government sites that stand for different proposition and building stone contests that you camp of compare the contested material with similar materials but we think those cases are distinguishable because they consistently do not address the issue of unique property or there's no finding of the unique property and that's true what's interesting here is that just does point out you have about a minute and a half very much in line to know you wanted to say that time yes thank you may have please the court i'm arcade from the department of justice and with me at counsel table is rachel roberts who is also from the department of justice and we are representing the secretary the new secretary it is our secretary i aphasia case multiple use versus all of these standards are going to the same basic fundamental question which is raised by the statute which is whether the posit of such minerals is valuable because that deposit has some property giving it distinct and special value mclarty is maybe a more not exit not mcclary the three multiple use factors get to that question in a very simple and direct way mclarty is a longer way of answering the same question or of stating the same questions well and in fact as i understand it you can correct me if i'm wrong aphasia case for multiple use is a fast way to say all we've got here is that the government has put on some case that gets them on past where they need to go and then the burden shifts right that's right that's so if the government meets their prime of face case the burden then shifts to stacie in this case to show by a preponderance of the evidence that there's a distinct and special value which would demand the higher value of the market right that's correct and i guess you've heard his arguments as to why the government did not establish the prime of facia case how would you respond well not surprisingly we think we the use of armor of the use of stone as armor is a common variety who's and that the prices paid for their stone the p r sixteen stone are similar to the prices that are paid for other common varieties stone that's used for the same use and that there's no evidence of any special property of the p r sixteen stone that would justify a higher price so you take the position that spencer stone is not no i might have i might have said that backwards on one of the two contracts for the sale of spencer stone that states in jackson put into the record the price that was paid for rip rap was higher than the price that was paid for armor stone that's right and way of saying yes there are so many different ways of getting to this what gives something distinct and special value and part of the confusion here in the case in the casey bentonite case the case involving benton clay you have a sub class of clay that's only usable for a certain specific purpose for making taconite and that makes it what the claimant claims makes it special ordinary garden variety clay can't fulfill that function and therefore to have to make to come up with a sensible way of determining whether this is special or not you compare ordinary clay to clay that a use that common variety stone also is used for granite but salt nice nice and several other minerals are also used as armor st so there's nothing there's nothing if it's being claimed for a common variety use so whether you compare stacy and johnson stone to armor stone or whether you compare it to rip rap the result is the same there are more than twenty quarries in alaska that produce that that produce common variety stone that's used as rip rap and that's also used or suitable for use as armor stone and stacy johnson has not been able to show that they get a higher price or that they make a higher proper profit on their stone than the stones of the common variety stone from these other choirs so that you know whether you're  whether you call that step four of the mclarty analysis or the first step of the mclarty analysis you're getting to the point of the statute is this a common variety of material or does it have some special quality and they were not able to demonstrate that it did and the evidence was that the only use who's been system is as armor so no they and the evidence is that they they have sold spencer stone as armor stone as rip rap as filter stone and these are all just basically different sizes of the chunk of rock filter stones being as small as four pounds and in one of the contracts that they put into evidence the rip rap the armor stone and the filter stone all the different sizes were all sold for the same price so that that's not necessarily dispositive but it certainly undercuts any argument that the states  well i don't think that it's fair to can to characterize his testimony as being a concession that the agency used the wrong standard heat if and if you read the whole piece of the testimony that's included in the experts at c r four thirty to four thirty six he goes back and forth and ultimately he says no that sentence where the minerals report says armor stone has is no more valuable than spencer arm or a stone is no more valuable than any other arm or a stone so it had said no more valuable than any other stone so that's a that's a correction that's not a concession that the whole theory of the government's comparison nothing could be more important than that yeah but the decision that's being reviewed here is the i p l a's decision not the testimony of one of the government's witnesses and the ib l a addresses this point it's a little which would make out the point otherwise yes the i p l a addresses that are one seventy one this is the top paragraph of the page near the last two sentences is other common stone is being used for the same purposes but it goes on and says more over and in any event we find the government demonstrated that rock used is armor stone is common for id building stone by showing that many types of stone are usable as armor stone and that a large number of cory's in alaska produce rock acceptable for use as armor start so this gets to where i i was trying to start which is that this this dichotomy that the appellant's are raising here between a comparison to other armor stone vs a comparison to common variety stone doesn't make any difference in this case because common variety stone can be used and is used as armor stone so that they just are not too distinct categories first black letter law that agencies decision makers apply the law in effect at the time of the decision so the two thousand and three rule was the rule that was in effect when the a l j made his decision before the i'm sorry before the a l j they raised for the first time in a petition for rehearing before the ib l a and the i p l a addresses it and its response to the petition for a hearing which is in the rec allies prior practice it's also a kind of occasion of this court's decision which states that it's codified what the i p l i had decided in an earlier case i i think than what states you would want us to apply well i think that they are seeking to rely on the one nine hundred sixty two rule for its language talking about that refers to  special value based on the location of the deposit as opposed to the intrinsic properties of the deposit and that's no longer the law because the one thousand nine hundred sixty two rule has been  superseded but even if the ninety six days to rule hadn't been superseded that provision wouldn't do them any good because it's limited to minerals that are being used in manufacturing or industrial processes the mineral materials which occur commonly shall not be deemed to be common varieties and for pit or for particular deposit as distinct in special properties making the commercial commercially valuable for use in a manufacturing industrial or processing operation so that's not this case so it doesn't get them and it wouldn't have gotten them anywhere even if it were so your position really doesn't matter in the right  if there are no further questions thank you thank you robert you had a little bit of rebuttal time if you want not show that it's in the briefing specifically page twenty one of the reply brief the only evidence that the government offered in it was in the middle examiners report on price comparison was to while t value and he didn't compare to rip  the poor service had valued for the deposit which was common variety material itself which isn't it didn't even appraise the armor stone component they compared it to two other quarries that we characterize as uncommon  back to this issue of armor stone vs armor stone armor stone to uncommon to common varieties and to segue into it some point it's a labeling problem here and it can be very confusing you know what is armor style which is what is uncommon variety and essential argument is that the and the idea lay decisions are confusing on this and they do not use a consistent standard and it to make it to avoid this logical fallacy to establish what is a unique property if unique property for the deposit the comparison has to be to something else that lacks that unique property the idea lay assumed in this case that this deposit can possessed a unique property of producing to state what they called large armor stone rebuttal phase of the proceeding on distinct and special value on price comparison it was basically two corps of engineers witnesses and they got to know hudson's formula and specifications iraq and corps and this and that but they didn't get in talk about market comparison they didn't talk about distinct special it was the ideal itself we could we contend the ib lay fabricated a market comparison and the market comparison was based on our my clients on contract bids on two projects there was no offer of evidence to any other rock wether arm or stone or not our common whatever you want to call it from any other producing source and that in itself we contend is arbitrary capricious decision making because board decision consistently state including mclarty itself there when you're doing a market comparison you go out in the marketplace and you look at other sources of supply and you look at the prices that was never done here the government failed its burden in the rebuttal thank you if three state the arguments from both counsel that case just argued of stacy versus  i guess they should've gone back to the new zinc is submitted and we thank you both coming all the way from alaska and also washington d c and we're now adjourned for the morning thank you