thank you certainly i'd like to reserve five minutes for rebuttal if i may are there are several issues on which the outcome of this appeal could turn but there are three issues that i'd like to i'd like to address today the first of those is whether or not the forest service could properly refuse to offer equivalent of mineral interests in exchange for the limited partnerships patented mining claims which were within the monument the second is whether the four services offered in january of two thousand and three was entitled to the death that is normally accorded to agency decisions and third issue is whether the district court erred in granting summary judgment in holding that there were no wishes of fact to be determined by the trier of fact addressing the first issue which is a statutory interpretation issue if we look at section three of the monument act congress stated the secretary shall acquire all lands and interest in lands within the boundaries of the monument by donation exchange in accordance with the  or other provisions of law or purchase with donated or appropriated funds except as provided in subsections seeing and except that the secretary may acquire mineral and your thermal interest only i exchange now the four service has taken the position that it's all right to offer basically scenic properties in exchange for our mineral interests and that's what they've done money overseas seems to me to be a different question when i was working for years where is the requirement says mineral mineral and i think you raise a really good point because there are other that it doesn't specifically say that in the statute i'm trying to approach this and i think the only way to approach this is a from a commonsense perspective can we go beyond the statute to even get your argument if the language is clear well i'm trying to think of it i'm trying to think of what could congress possibly been trying to accomplish by t seems to me that their simplicity and what congress is trying to do it park because it's so much easier to exchange and mineral deposits for another mineral deposits well you say that but then of course we'll be right back where you are comments of representative smith of the only ones that we have the only clue that's fair skinned and now one of the other issues that i'd like to address is that regarding the difference which was accorded to this particular action by the forest that i should start by saying that the forest service is not normally the government agency which is responsible for evaluating mineral interests in granting patents that steve bureau of land management therefore this is not an area of substantial agency have expertise which would normally warrant some deference in its decisions now the forest service also has a vested interest in this case in valuing mineral interests as low as possible because that means that it will give up less and return whether we're talking about property or we're talking about money but doesn't that then go to the next in this case of i'm not wrong the poor there were various experts on both sides valuation then the forest service appointed appraiser who then tour and got his own geology expert and then the venue appraiser and i didn't find anything in there other than the fact that you challenged his ability or submitting things to arbitration talks about further steps whereas the government which was facing a trial date decided to do something they certainly cut off the ability to have judgment by an impartial third person which would be the judge and instead they asked the judge to give the forest service deference to and to by using the arbitrary and capricious standard they changed this motion from  normal rule fifty six motion where questions of fact would be determined if i had tried for a fact to into a basically a hands off approach where the judge was forced to been your briefing in this would confuse me are you saying and maybe you can help me understand are you saying that somehow the agency is going to do something more akin to litigation experts a trial judge would not necessarily have done that if we had been permitted to present these opinions a trial we had again to fight these experts as expert witnesses for the purpose of trial the government had not identified they made this final determination on the valuation current yes but that's really what we're now looking at maggette them and procedurally i'm having trouble figuring out  even under that regulation there is a provision for a third party terminations in case of a dispute regarding valuation and so we already had a procedure for third party determination that was it does provide for arbitration your honor which is a third party outside the agency where that's not the federal district court and i believe that it says or other processes so it doesn't have a catchall as well it's pretty clear that it's pretty clear that the government in this case to drag its feet it's pretty clear that the government in this case knew that it was facing judgment day very soon and if you look at the if you look at the whole way in which this appraisal came down to look at the timing of it if you look at the amount of time between the issuance of the appraisal report and the motion for are trying to say we're it's unfair that they can just sit on it and then parachute in here like nothing happened so what's the consequence in other words is there isn't there some penalty or at least in your view it's not a penalty putting you on equal footing in terms of no deference and there are at least supreme court cases that saying that when the government does the way that the issue should not be considered moot by the trial court found that you looked at the question well heck you guys here at the forest service why didn't you make an offer to buy the patent it claims that you've always wanted to buy and everybody agrees you've got a pie or try to acquire through an exchange body and the district explains is that the forest service started actively trying to get an appraisal and placed trying to get expert knowledge just valuing the properties of course the problem is it has to be apples to apples comparisons with respect nineteen i think the record shows that ninety five was the install crisil i can check that against the record and the record also shows the agency's geologists had started to do the geological analysis prior to ninety nine art when the lawsuit was filed i hope that's answering your questions that you started with our again what we are dealing with in this case i think is the questions from this court pointed out  now that it is critical to point out that congress directed in the monument act that this process takes place through a consensual land exchange the  current market valuation it's the value as of the valuation of the property as of the time of the acquisition by the government in other words you use that it had or near the time when the government is actually going to get the property here there's no outside of the record the world market in minerals changes and whatever in the united states money's gone away so what's in the record relative to that because it was the way argued in the valuation process of price and i know that the one of the earlier date for value were sort of stuck under the rules of course with the current valuation the the record doesn't show i mean obviously the nobody's done an appraisal of the property as giving the owners a put in other words if the price goes up they're never going to stop the government if the price goes down then they'll sell for the government because it'll be lower than the market so it doesn't make any sense from a practical point of view but let's let's look at the record in terms of whether there's been any jimminy ration value the only thing in the record in the record is really thankfully silence on this point was in arguing the district court and that is the question the ice cover and the price when the humbucker analysis came down in two thousand and two if the if we were to actually we knew the offer we have to renew the appraisal actually press coverage doubled in the last two years so presumably the appraisal would have to be adjusted  but basically what you're doing is you're figuring out what these things are sold for in the open market you are you just that for the for the commodity price hawker and then you basically  definition of the definition of of i think appraisal includes fair market value is a reference to the uniform standards of federal land appraisals which also has a very clear statement about fair market value and of course those are quoted in the record by the agency in their response to some of the complaints by the plaintiffs so there's a very substantial evidence in the record as well as in the law that it has to be fair market value and has to be current remar so apart from the timber congress did not provide for a condemnation of florida here and basically recognize that we might not be able to acquire this consensually and in that event congress said well you can completion act of course and that's about a four hundred that's about congress told us to pay through credits more or less the same price that we're actually offering here and when to get the place and i can't remember the days that compared t i think that you have a seven zero six one remedy and that the all the law would provide for now in this case however the forest service wants to wire the stuff it's limited by the statute and by the regulations about what it can pay for it so there's certainly plenty of willingness on the forest service part to get the stuff they want to third title to the monument and they have in fact acquired substantial amounts of property out of the monument area  over the course of the period of twenty years or so the stuff takes a long time by the way as you can look in the record and you see take a long time to prepare geological opinions a long time to do anything appraisal of and it's slow but apart from the fact that it takes about three problem is basically valuation find is just are not happy with what the forest service is legally obligated to pay thank you thank you in that memorandum the government basically put cooed the congressional direction that the changes take place within one year pointing out that it's in the sense of congress and it's not mandatory the government also stated that steyn memorandum that the act provides that the secretary may acquire minimal claims if he wishes and the government was not just talking about unpatented claims because it has to  the form of the testimony of mr spears the testimony of mr minimum many em both of which were submitted in the form of the affidavits and the government's own actions in its memorandum in addition to its delay in waiting to hire an appraiser until august of two thousand and two which was in the record it was in the record of the reviewing officers report all of those things created a certainly at the very least an issue of fact with respect to the government's one reasonable delay an issue of fact as to which the plaintiffs had an ability and a right to a trial