through the process but they haven't received final approval of their plans operation when i heard and counsel in the prior case to describe the policy in their  policy issues in their case i thought boy i should just typical of that place here because basically what we're talking about in this case the court the central question the courts being asked to decide whether or not my clients are entitled to have their day in court in order to understand exactly what i mean by that we need to step back and take a look at the fact that we know that are in the record we know that in a prior case we first of all we know that mike mike the miners all refer to him as the miners received approvals on their plans of operation in that approval before service make a determination that an environmental impact statement was necessary and then the c c c filed a lawsuit health canyon preservation council versus four service in which the district court in joined the miners from taking until at the earliest february twenty first two thousand and one three and a half months before the district court made a final determination and an order in this case secondly mandatory intervention  well that's that's the central point of this this matter i mean we don't we need to understand that i mean the thirty thousand foot level view of this case in the first case the court report said look whatever the results it's not going to have any bearing on the minors so practically speaking if the minors were to come to me prior to that decision being issued in june and said hey should we to court again your honor the agency was an order to the order did not from the court did not say revoke their place of operations the relief sought by the plane is because the relief that was sought by the plaintiffs in the original case was not as against my clients it was only against the forest service and it wasn't to vacate the plans of approval well you know my clients can no longer can no longer operate under those approved plans of operation on june twenty seventh two thousand when they could do the whole  mind if i understand what you said your question is did we have a legally protect basically legally protected interest in the plans and offer ration i mean was that something that basically that you know in my line of work vested rights issue certainly do and they thought they had approved plans of operation they were told go out and dig go out and start making money my clients don't longer they watch that right they lost a right they most certainly very tangible right right that they invested money in forced to go back under it and environmental impact statement analysis that we don't think we're subject to which is an issue that we never we've never been able to raise a viral impact statement over the years that that has in effect come back to to really harm us it is a policy additional regulations which has caused my clients to know we lose income but also to lose lose some of their investment as well so i think in other words the exclusion which we we believe they had a right to rely on however that issue was never litigated in the underlying case because the forest service simply conceded that we screwed up we never had a chief we didn't we don't think they very well and and you know i can't foreclosing any future you know future actions but the fact of the matter is that the only one of you always like to do is argue before somebody who will listen of operations one of which hasn't been submitted to the forest service yet the speculation is that because it's not yet mining season one which has led to this the minor minor would have to so the states sent letters to that to the miners and said if you resubmit your plans and in compliance with the conditions we've been posed in the rod with the correct bond they'll be approved and that's happened with one of the miners more in the i did have discussions before i sent the letter and about the status and relayed basically what we said in our letter which was that the bond was insufficient and at once they submit to bond it will be approved my understanding from the forest service is that for one of the other miners the bond has been submitted but that the miner lost his copy of the plan of operations and so we had to send them a new one for valid claim and it once they have a valid claim then they and that turns on whether there's some reasonable expectation of making a profit out of that claim then they do have an interest in real property that's good against the us but i s to twenty eight point four he gives the forest service the authority to modify a plan or to require more needful work only when there are unforeseen significant disturbances of surface resources so the the authority under the rigs depends on a finding that something more has happened and that's why if else can you case where it was clear that the one year categorical exclusion for multi year plans was in error that we inform the district court that under our regulations we we don't have the authority are still to do that because the miners do have have the language in there about i don't have to enjoin the minors but he goes on to say in that a vengeance that what i am going to have to do is vacate the approvals and that may have the effect he's going to have to  be to set aside the unlawful agency action and think that's a magistrate judge understood that in it in this order on jointer that the relief he would have to give would be to set aside the approvals that was i do think that there is a serious spinal agency action problem here if you look there are only five circumscribed discreet agency actions or a rule sanction relief i think it's pretty clear suffered this harm from not been able to mind they might be able to bring a temporary takings case and that wouldn't be precluded but the health can you taste and we think we have a good defense to that temporary safe use case and that we were required by court order both and the less that they could still bring that type of a case what they can't do is seek to re litigate what happened in the first jointer and intervention in the cases in which we bring against federal agency frequently and these will seek to intervene as of right work earnest of leonidas cases and what generally happens under the case law in the ninth circuit  protectable interest for the purposes of joinder but there are other criteria for intervention including the adequacy of existing representations you get off our joint only that's correct your honor they would have to come to the court and demonstrate their entitlement to intervene on that basis or to be joined on that basis and they didn't do that i think it's very clear in this case based on the record before you that this agency vancouver backwards to inform the the public's interest exception survives martin v wilkes and there have been other cases decided by this court related to the relief in which they could have moved at that time and i think they could have they could have done that so for them to come here today and make negotiations may go on between the forest service of the miners as to any reclamation bonds council before service did mention that one of the miners has not yet even submitted a plan of operations to mine again this summer i think this is a case that is here is a legal issue rising again that if the complaints of comes back into federal court and proves that the agency has violated the procedural requirement and the district court is in the position of having to decide what to do about it if that judge were to once again set forest service does have the authority under its regulations to withdraw any illegal plan of operations and fix it and i think there are temporal and other kind of regulatory parameters which decision to do so but that it's regulations to anticipate that dazed from the appellant it seems to me that we're going down a road that i don't think we necessarily want to take the circuit down compulsory intervention mandatory intervention plaintiffs the council are not seeking a court injunction directing the claimants to stop their mining operations that's what the court found in the first case ok there is no reason for us up until june twenty first when the order was officially