program the rules are located at seven c f r part fourteen town they're expensive or in addition to the rules there's a handbook the handbook is also very extensive it's eight hundred nine to the version i wrote that say eight hundred ninety eight pages with forty two pages of exhibits setting forth procedures and it needs to be that way so that everyone who participates in the program is treated the same we have two claims that we brought here and the handbook and specified in the rules mr middle that was deemed was was eligible to apply for to compete for another contract and the next moment that contract in two thousand and seven to two thousand and seventeen timeframe what was determined after that contract had ready then approved by the sub agent or the subdivision of the agency that approves contracts arm after the property had been inspect whether tract ninety seven the three instrumental steps track was eligible to compete for a contract in two thousand stop that eligibility turned on under the under the rules and so if that's what we're reviewing how important is it to your position that we agree with you on the contract argument or is it not important well the deputy director found that mr mills that agreed with you thinks number one that the sole issue stipulated for consideration at the now level of determination was mr middle stuff was mr whether mr little stats contract he was eligible to different way suppose we have an agency i think get away from these facts hypothetically that program participants have some high end contracts just capricious action by the agency once the decision has already been made under the agency's own procedures yes it is the determination as to whether mr middle stat was ok that was the eligibility issue but you have you are not entitled to this next one because you you lock your eligibility so you cancel out the old one by saying that he didn't meet the mixed hardwood standard that takes away his eligibility to have competed for the new one so then the new one goes away to now the issue of the next target standard when going away the only issue in front of us though i mean the new one going away as we're putting it is the only issue in front of us court yes because he won oct i think took him to be sure it took him to the director level of the deputy director level to prevail on the prior period but he did and they stipulated that if he won on that issue which depended on eligibility that was the only issue he was seeking the kind of this was this this controversy was about the contract from that day that you know that was worked on developed in two thousand and six for the two thousand and seven timeframe the dispositive issue that was stipulated was whether he was eligible for how it competed for that the reason that that was the dispositive issue is because the agency has a precisely defined method for how you compete for those contracts and he had gone through that it not up to the local county to decide to undo a contract to get the determination as to whether you secure a contract comes through procedure and it is made by the conservation environmental programs division not by whether any contract application is acceptable or rejected once they make that determination that it goes to the county and the county is given ministerial duties they've had their opportunity for input in the contract development process but once the contract is determined to be awarded by c e p d the locality is given specific duties they are told specifically that you need to sign the contract you need to issue the conservation this is the process he had one he had gone through the specified process defined by the agency to win the second contract the determination as to whether he was entitled to that second contract had been made by the contract operation was not what it was supposed to be they were required to tell him what he needed to do in order to increase its e b i the environmental benefits score because the way that these these contracts are word nationally is that c e p t gets all of these contracts on a schedule from all around the country and their score under environmental benefits index score and and you know that's price it's a number of factors that are laid out in the hand and and in the process because he was eligible and in the process of applying they were required they were furtively required to tell him if there was anything that he could do to increase his e b i score then after  exhibit nineteen two paragraph one seventy  one thirty eight and it's you know it's right there and shout constructs f s a shall review the fact sheet they're actually require the from the producers people who are trying are actually required to certify that they have had this represented the defendant before the court in this case this is basically an appeal from the district clerk's judgment of harming the final decision of the secretary it's brought under the administrative procedure the final decision that we're looking at a state court already noted it's really a decision of the deputy director of the national appeals decision and that is that director denied reconsideration and therefore the deputy director decision became the final decision that was the decision made in two thousand and nine i think mr johnson's position isn't as i understand it is in if you look at the at the the blue briefs in the appendix page thirty five ok you have it there is i understand this and the reason i'm asking those questions i want to make sure that we're trying to get on the same page as to what the dispute is i think the point he's making is that the deputy director statement that the program requirements on a going forward basis i think your adversary point is that just fell out of the sky that's that's made up because everything that preceded that everything he was just walking it's a mixture of both kinds planted in the same roles or another way of saying it was scattered throughout the field that's what they were looking for in two thousand and six at the time when this reenroll came in is that is napping written down anywhere no it is not how mr mental state and know that well he wouldn't maybe necessarily have knowledge but first of all there was no requirement that it be written  his isn't a concern that on a going forward basis you know he he believed he was entitled to reenroll meant to continue participation but he had no idea under what standards in so isn't isn't really at bottom when you sort through all this about standardless where again and i see that is that that's his it's his problem here is that he thinks that you know he had he had no way of knowing but the fact that first of all i don't think his argument here that he was treated any differently than any other persons who are trying to rule their property in the program that's never been brought up and so and also i've cited case on my brief that the agency lot of the walnuts had failed in fact there were some areas that only had like ten percent of the tree still growing those one area on the sixty five acres where there were just pine trees which is the soft wood and there was nothing wrong with having pine trees mixed in with the hard woods because they were planted as trainer free so that was acceptable but nevertheless there was one area where there were no hard words there was even that area actually the california half a percent had no hard woods at all on it and so he didn't meet the standard and he wasn't treated any differently than anybody else atlas and rolling to get into the program and when you think about the definition of mixed hardwoods it really sounds like ok next in other words the t accomplish the goals of the c r so right there is the discretion and it was totally broad i don't know of any case cases that even interpret secretary's discretion under section fourteen ten point thirty one have well that's where the discretion came from yes and the other fact is that even if even if the property were and rolled the contract could have been terminated because they didn't qualify didn't have the mixed hardwood sonnets that were and somehow come up to the standards that the agency was looking for at that time and the reason i say that is that he admitted before the state committee that it wouldn't do any good to us to plant  of i'm not sure why the secretary was given such broad discretion but nevertheless it's right there in the in the regulations and look what it is really about is u the secretary ultimately you know would have been the agency when you say it is in the handbook is it if if we all got the handbook out today and put it on the table with the definition of mixed hardwoods or or what i have to do is on isn't it i mean you're talking about planning things on land that landowners that want to apply to participate in a federal program have no idea what they should do to get to with respect to tree planning to comply they could have gone to the agency and asked it at any time going to be accepting new applications for contracts the new program and these were his definition of success what he was looking for in terms of true or not as far as  application but there never was a contract and i do want to make absolutely clear that the agency when that contract was sensed the end in august of two thousand and six although the county executive director of that sign did it first he then why did not a signature and so it never really became a binding contract and the contract form was never delivered to mr vandel staff and the regulations fourteen ten thirty two when they talk about the contract say that it needs to be signed by the producer in the owners of the crock land period says not a thing about the counter site w labeled right at the top form c r p one conservation reserve program contract and there are signature lines on there for both the producer and a representative of commodity credit corp  and as i say there is a signature line for the county executive director which you would expect a contract like this or if that's going to run for a ten year period be you know with a government agenc thank you the only dark condition of mixed hardwoods that existed with respect to this property was the definition that was in the socit conservation plan what would you have not during the time during the period of two seven when mr middle stack was applying for the new contract there was a specific procedure there has to be an inspection associated with that procedure he paid for that inspection that inspection was done on sixteenth two thousand and six it said on trees looking good i think it was it was a good inspection and they actually if the local county has to identify it while he's in the process of applying for the next it he can't violate the conservation plan so he couldn't have changed his property on the conservation plan i'm sorry i forgot your question and we have to go where am i going to find this would like to say just one thing about the regulation in my forty seconds left this regulation that was identified fourteen ten points thirty one seven c f r fourteen ten point thirty one that's the one that indicates that people may submit offers you then go  and when when they were sending the county by sending the information about how he qualified under the p r i in the contract instead of that contract however they issue those contracts because the stuff is coming in from all around the country through a procedure he had already won seventeen tenth the new contract through that procedure if he had not already won the new contract through that procedure seven hundred ten that number would not exist that's the number that's associated because he won that contract through the seat c p d awarded the procedur that there is no definition of mixed targets with the exception of associated with particular conservation plans his plan property repeatedly met the definition of hardwoods mixed or mixed