falls under forty one p and forty one b show operate as an adjudication on the merits unless the dismissal was for lack of jurisdiction in this case of the stuff in front of in forty one pieces that it was it was with prejudice correct but there is a legal entry which is the absence of a specifically required math in a specific location as specifically directed by statute the knowledge that that map didn't exist in that location much le oh this one in the box marked irrelevant that's right and it's in a bucket of well six boxes of volumes of papers marcie relevant frankly h t p c was looking through your honors my name is james kilgore and i'm from the department of justice in washington d c i would like to start first with the statute of limitations argument and then talk about the race judicata you should i think would be helpful to the court to explain the me at counsel table as jeff handy who was the trial attorney and i conferred with him when plaintiff's counsel made that claim and he is not positive but his recollection is that we asserted that as to both of how this statute works congress created this rescue service recreation act area with the wilderness in one nine hundred seventy five and the governing statute has the critical part of it has two com it is creating the whole recreation area and the wilderness area in a quarter as generally depicted and that is the statutory phrase generally depicted on the hundred seventy eight map and then went on to direct the secretary of agriculture to do a detailed boundary description and again that's the key phrase in detail boundary description of the entire recreation area and the wilderness area and to publish it which which we did and that was published we published notices of the availability of that that notice of availability said that these are the legal descriptions and the detailed maps identifying the entire recreation area and the wilderness of the boundaries of the wilderness if the plaintiffs are going to stir that that legal description of the one nine hundred eighty one legal description is inconsistent with congressional intent that is inconsistent with the hundred seventy eight man the statute of limitations on that argument began to run in one thousand nine hundred eighty one and that's to actually limitations has long gone now what plaintiffs are trying to do they're trying to its interpretation of what's contained in the one nine hundred eighty one boundary description of plaintiff's argument plaintiffs argument rests on whether the the road here and the road predated the creation of this wilderness area platers claim is that the road extends into the wilderness area even as defined by the map and the one nine hundred eighty one foundry descriptions so washington headquarters went back and looked again and said we do not have the original map and wrote back and said we did not have it on the other hand they said  the statute and your position is it's too late for anybody to raise that now if this is too late for these people our position would be i think it our position would be these people certainly cannot raise it because it was too late for them i think also but everybody else now has no i think the in our view the boundary the boundary was clearly established in one thousand nine hundred one through the a violation of law i did not say that i did not say that what i was talking about wise whether the stack should limitations has run on their claim and that's a different issue from whether the road action which determined that this road is not in the far that's correct now and i don't think that's unusual this is fair and open tory is this road has been there for years there distinguishes that situation and makes it clear that where you're talking about federal actions the federal government and where it is yet publishes something and the federal register that that is especially constructive their original suit they brought that suit in one thousand nine hundred four they made a claim they asserted in their complaint that a portion of the lord's flat road crossed into the wilderness area they withdrew that claim because they had there was a declaration that they themselves introduced into the record in this case explaining why they withdrew that claim and they say we realize we did not have enough evidence in light of what the forest service presented enough evidence to for tail on that claim and so we are now withdrawing they then and that was in one thousand nine hundred five they then waited another seven years before they brought their new claim so they were on notice that there had been and a potential that the road intruded into the wildlife after enter their wilderness area and so the planners were serving that the road in one part touched or crossed that line the forest service came back and said this big that thick wind is not the actual per side foundry the precise boundary is a point to point line also shown on that same map which showed that the road would have been outside the wilderness area that i think their current claim their current claiming that the road crosses over they believe the boundary to be the hydrologic divide now where they get that from i'm not sure because i think the only claim that they can have is the boundary line is as described in the one nine hundred eighty one foundry descriptions and they can assert perhaps they think they could claim if they wanted to but the road crossed over where that line yes but they would have to prove that they had the ability to do that in one thousand nine hundred four but voluntarily withdrew that claim they voluntarily withdrew their summary judgment motion asked at the day really i think that this case i think it's has to be ruled are governed by what is set out in rules forty one b now we've heard this morning at least i thought i understood plan of saying two different things about whether they agreed this was a forty one b dismissal or nine as opposed to a forty one a dismissal i do not think that this qualifies as a forty one a dismissal it certainly isn't a forty one a one  a rule forty one be dismissal which talks about among other things dismissals not otherwise expressly covered by the rules are brought in under forty one b and the case all the way through oral argument on the summary judgment stage they realized they did not have the evidence to sustain that judgment and so they wanted to pull it and and and they did forty one eighty t court t v property lest otherwise specified in the order of dismissal under this paragraph is without prejudiced when it's voluntary with voluntarily with through their claim that into it according forty one a one court did dismiss that showing where the rotation with this funny sentence on expert in that case refuted its own math saying well it looks like it but really that line isn't accurate that's the planet's ok we don't have the specific facts photographs document of places on the ground where this road crosses that akhilesh divide that send an isn't supporting its own map what are we going to do we're contending here that it was fine it's right to withdraw that claim then based pressure and what distinguishes this case from the authorities that send cites and shine iraq in ten fold those cases involve specific agency actions where there was a decision related to mining there's a specific agency decision and action