case is whether certain dinosaur fossils are minerals under montana law the answer to that question is yes and this court should say so without certifying the question to the montana supreme court because the montana courts have already spoken defining progressively narrower subsets so that the broadest possible category is you know anything that you might find on or under the ground so you know gold sand and gravel potatoes whatever inside of that is a second narrower category that is materials that fall within the scientific or technical definition of a mineral and then inside of that it is a narrower still third category which is materials that are within the legal definition of a mineral now there is no question in this case that the fossils that issue are within the least that second category materials that fall within the scientific and technical definition of the word minimal that wasn't disputed below it's most clearly laid out at page two ninety of the excerpts of record position here you are asking the court basically to extrapolate from parley and it's hind it's i think it is the other case this two part very simple test  to be used in all future cases in fact it seems to me that farley seems to go out of its way to limit its holding to the score at issue there and look at high in its and i don't see a two part test there either which expressly in hind it's considered the court there and sit or multiple factors including  evidence as to the nature of this substance its relation to the surface land its use and value and the method and effect of its removal in addition  both these cases are at the end of the day contract cases just like this one which seeks to basically discern the ordinary and natural meaning of the terms used by the parties including the term mineral so ill a lot of that i know that's a lot but can you please up point me to the specific language in farley or anything referenced there that supports this two part test i mean there's certainly nothing specific i think you'll agree i agree you will not find the you know the language when we are establishing a two part not just because it's a second case but it's significant because there you had a new kind of material not previously considered the heart was sandstone used for construction and and rip rap and what the court did and in heart it's a fairly short opinion they didn't say you know we're going to conduct our own inquiry into ordinary meaning they didn't look at dictionaries or statutory definitions they applied fairly so i think  the best reading of heart is that it is a recognition by the montana supreme court that the question of what is a mineral is analyzed by applying the sort of analysis that was used unfairly and that's what they did in hard  property giving them special value so that that is the test and the the virtue of applying it that way of course is that this is a question of property law and contract law and it's important  that property rights be clear and it's important to have a clear to us so that when parties you're right indeed as it's fairly common that without specifically thinking about particular materials they write a deed that just says minerals and the they at least from my read it seems to be a well established exception for substances that are used for building roadways or construction so i just i want to know how does the reasoning supporting that exception apply to fossils seems like dinosaur fossils are not use for building so isn't this case dissimilar from those cases dinosaur fossils of course are not used for building but the reason that the building material the the use in building was mentioned in those cases was not because the court was saying there's a special rule for building materials the court was talking about the use of the material because it goes to whether they whether they have special value or what their character is and in one way that we can see that is in you fairly itself quoting you ultimately quoting high notes but the farley court quoted the language that said sand is not a mineral but if you had a special kind of sand that you could make glass from that would be a  mineral and similarly limestone is not your ordinary limestone is not a mineral but if you had a special high quality limestone that was suitable for making cement that would qualify as a mineral and so the what's significant about that analysis is you're making glass is not it's not a building material but it shows that you know ordinary infor of low value uses like rip rap like roads don't qualify something as a mineral because if they did you know that stuff is everywhere and you could remove the whole soil that's the folks on the on the rare an guess is archaeological artifact minerals such as clay pots or bones human bones or other animal bones or i don't know there's just of all kinds of things that may come up in this area maybe asteroids those each be examined just based on that two part test well i think you have a couple of examples there are some of them are pretty easy because the and clay pots would not fall within the scientific and technical definition of minerals because those require that it be a natural naturally occurring substance agreed on that i mean if you you can pick it up the fossil that isn't and it looks and feels like a big rock because it basically is a big rock and you know the question is you know how is this rock different from you know a block of seams sandstone or a block of limestone and the answer is that if you find a block of limestone if it's ordinary limestone you just do he was as ordinary material that's not a mineral but if it's a special block of limestone that has some special value  to my great book my great school knowledge of fossils but seems like there's two kinds one is the fossil that imprinted on a rock or the imprint of the animal or the structure or the bone on the rock and the other is the actual like what was found here seems like were the fossilized bones of the dinosaurs is that right that's yes well what's at issue here is the mineralized bone and it is something that scientists would describe as as a mineral either a drug slop a tiger or frank a light and it's it is a mineral in that sense and it is a mineral in the legal sense because it's not an ordinary rock it's a mineral substance that has that has a special value even that seems like the fossils have a wide range of values do they not  yes i mean it just as you know different types of limestone have different types of values some are some are valuable some are not and that is there any i guess you saying limestone do you examine it like you would i mean you would have to here in terms of each specimen to be evaluated on a case by case basis what happened then that's  characteristics of you know what's at issue in the case and you mentioned that artifacts are or are man made but wouldn't that be another factor that the court would have to consider which part of the two pet part test no that goes to whether it's within the ordinary scientific or technical definition of a mineral because that definition encompasses only naturally occurring now which is really an exceptional a fact issue or a matter of law a jury would be asked to determine whether or not this was rianna exceptional that is that that's correct just as i think you would have to determine what's the intended use excuse me of the you know the buildings that are stone or the sand i think it is fair to say though that in any case where you know it was actually being litigated if you would probably be able to have pretty good evidence that it had some value based on the fact that  part was summary judgment right i believe that's correct b and that's because of what the court there was no the only question the only evidence of use there was you know very greed that it was being think that's on the top of your mind this may be a case that is appropriate for certification although neither party has asked for that we certainly recognize the court's  if the court is inclined to do so i think that you know a purely court purely legal question something like does a dinosaur fossil fit within the ordinary and natural meaning of minerals in the context of a mineral estate or mineral deed would be an appropriate question you know the court has done that tilted in your favor because i think your opposition doesn't agree with that fini well that's certainly is the test and i think that's the ordinary natural meaning is the test that this court or montana supreme court is going to use and ultimately find whether a prehistoric benefits or skeleton fossil is going to be considered a mineral when two parties are contracting with each other in terms of reserving mineral fairly that is that the test used in farley ordinary and actually yes i think farley was the one that identified that it certainly is relying upon highnesses well judge waters utilized that test and i think is important for us to back up in terms of  it limited to a score you material and then when another mineral came along and you would look at definitions of center so that happened for us so they get a chance to do that to get a chance to do that in heart and what do they say  heart they say look at farley and in farley then they conclude for whatever reasons that israel exceptionally seems to be a lot of the arguments here are that farley was wrongly decided that we ought to have some other method of determining this question but it is what it is it doesn't hard then nails it down well it certainly follows farley and i think charlie's what we can gather from farley is not whether it was scoria or line stone or gravel or anything that we commonly think might fit within that mineral definition but it's to look at the ordinary and natural meaning not the scientific meaning this is i think trying to say is we don't want the court to become a chemistry lab we don't want you to have to determine what components and what chemicals actually fit in a scientific definition in fact they caution against that they say let's use the ordinary natural meaning and how do you come with that with respect to the way i read farley is they maybe started out with that concept but they realized that there was no such thing different regulations different laws that defined enroll in different contexts they concluded that when they analyze the law i think of wyoming and texas and oklahoma and i forget what all else that they had certain things that seem to be in common they then incorporated those things into their definition but seemingly recognizing that in each case you may have in assessing the for some fact finding because minerals or not just a generic homo substance could you address for me your contention that farley requires or that a lot of wantin it requires that we consider things  know my word i'm looking for here categorical analysis now the words that we have to analyze these things by category i think that's an important part of the rare and exceptional because when we look at minerals in the in the ordinary natural definition of it i handful of this mineral is the same as the handful of this man it has no uniqueness to it a handful of gold dust another handful of gold dust coal coal it's all the same but when we come to dinosaur fossils they're unique in its nature and that's what that's why the appellant's position is not logical is because we have we have thousands  countless parts of dinosaur fossils that can be found or are found there valueless only the ones that are in a particular form in a particular species in a particular completeness and that's what judge waters found is that it's because of the uniqueness of the condition that it's found in that makes it valuable let me ask you but the the as i understand it the farley relying on the texas case th its case yes rejected this categorical analysis if that's right wouldn't the two part test in farley be adequate to decide this case in other words have the montana supreme court given us the problems of analysis necessary to decide i think that they have i think that in fairly and in and in craig they've given you two examples of what some people might commonly think of our materials or substances that are fit a mineral scoria looks like a mineral to the common person gravel sandstone those kinds of objects are typically thought to be mineral type because they have minerals in it but what we've learned from those two cases is that is not the complete analysis just because we have mineral based compositions it has to still be rare an exception has to be as a group and i  beg to differ with you that farley chose not to have that as a group i think that they thought that they relied on hymens to say that was the case i think i think with a has to say is there may be there may be considerations where a particular common substance can have an unique situation but i don't think that was the holding of it i think what it has to say is this this component this substance has to be always rare and always valuable it can't be just picked out of a group of other things that are not we we have in the record juncus ours or leave or right that means leave or right there that means they are bone fragments that have no value no usefulness at all but in this particular case counsel i know you can pick out isolated examples of where categorical analysis would be helpful but in this case you've got these really valuable dinosaur bones yes i gather you don't dispute it's made up of currently made up of minerals and that it's rare and unusual these particular ones are you're oh what's the problem the problem i care but she's me doesn't answer the question no it doesn't because what we're trying to figure out is what was the intent of the parties when they when they had a contract on this deed reservation what did they not intend to mean what if they had no intent or ascertainable and that's where we're at and that why we have to look to the common the ordinary the natural meaning of how montana interprets this do we interpret it as a mineral that is escovedo in a mining operation no absolutely not we identify these as as remains a of a living organism that once wrong this earth and that's how we differentiate between certain labels does it have mineral components to it all we all have mineral components to lots of different things organic compounds appear everywhere but they're not considered minerals in the terms of a mineral deed i think you just made a reference again and you did so in your grease regarding and i want to make sure i understand  whether substances must be resolved categorically yes you say yes yes i think so yes that seems like that might your mind your argument that there are substances that are minerals in one instance but not in another because we have that in some instances that sand you know such quality it's a mineral when it's released from making glass but when it's used for construction it's not so inmate maybe i didn't make myself clear i apologize i think there are certain substances that have minerals in it that doesn't make them a mineral in terms of the broad definition of the deed doesn't in a mineral a state there's a difference between that and that's why they're rare and exceptional is important as a category because those particular items like sand gravel limestone which initially would have mineral that dinosaur fossils may all be minerals they must be rare and exceptional yeah and they must be rare and exceptional throughout that category in that sense is non categorical because you have a category and then you exempt out those which are rare and exceptional all coal is the same all copper all or is the same it's the same in its content and it's the same it's value here we're taking a selected four pieces out of thousands of fragments and saying as a category these are minerals well the next ones that you pick up off the ground are not and so i don't think that that is a valid way of applying the test judge waters in her analysis said the rare and exceptional assists the court assists the court in making that initial determination of what a mineral is based upon the ordinary natural definition it's not a separate one but it  helps the court to define and to reach that ultimate conclusion whether this meets the mineral definition i would suggest  that in that case in terms of this category that's why it's so difficult to only concentrate our analysis on particular items but it has to be on whether this would be ordinary wouldn't going into a ninth grade science class and sent to the lawyers for counsel how could these dinosaur bones under any circumstances be ordinary well it's not that they're ordinary it's that that they it's the ordinary and natural meaning of mineral so that's what it is to take these we're talking about these specific fossils and i think this litigation you know about they're not hart which add on to that you've got to be a mineral is understood in that you're ordinary and natural and then you've got the rare and exceptional and you've got that here don't you know you don't i beg to differ your honor is that way but it's  not that the item is ordinary it's does the item fit the ordinary and natural meaning of minerals and we know in montana law we make distinctions we make distinctions in in our statutes we make distinctions because we two different statutes or regulations will is that we've got to figure out a different way to do this and that and then that's when they went to the mineral in the scientific sense and then is it rare and unusual and i think that's why you can't rely on one or one or  another type of statutory or other reference but what judge waters did is she took a wide variety of resources she took dictionary references she took statutory references she tried to apply hard rock substance that is mind commercially in a way that does not fit the fossil definition she recognized that the fossils are unique in their nature because of their completeness because of the way that they are found because of their species and that is it is not typical of a mineral only ask you this my understanding of coal is basically it's primarily made up of dinosaurs  idea that that concept we don't know that for sure because we know that we have found other mineral geology and that's what they taught us right with well into it but we can't explain why we found minerals and other mineral deposits on  other planets other moons because we believe that there's no life there and there was never any life there and so these mineral deposits may have create been created by other things so yes  that there was a louisiana case the pellet site about clams well we don't have clams in montana we don't have a gulf coast we don't have things but we have rent rainbow trout and if you find a fossilized rainbow trout and the bed of a gallon river nobody believes that's a mineral they believe it's a fossil they believe it's a with that happy illusion i have to stop you because you are over over time but we do think montana has wonderful trout we congratulate you on that thank you and we can be in agreement from from farley but it's also answered by the statement of the holdings in both charlie and hart in farley talking about scoria the court says such substances when they are useful only for building and road making materials for purposes are not regarded as minerals and similarly in the heart of the court said the sandstone at issue in this case is not exceptionally rare and valuable so in both of those do that's exactly right your honor farley was you know and represented an effort by the montana supreme court to articulate you know how to determine the ordinary and natural meaning of the word mineral but they determined that unfairl right reversed thank you very much thanks to both counsel for your arguments we appreciate it the cage just argue was as submitted and the court stands adjourned for the day