hundred ninety five settlement agreement entered into by the department of energy the state of idaho and a z concerning the i know among other areas at the i know are in eighty eight acre subsurface disposal area where waste generated restrictively modified by saying and by estimating the amount of waste that they're referring to and the context of the situation which very important is that all of the parties work had in their contemplation was the store within the definition of that or above ground come within the definition of trance your own equation and every bit of that has to be shipped into this and but when you say trend you anyway if you really meant the old definition yes around it that's another that's another thing that is not clear cut away from the contract language but i thought the contract language referred to the hundred manicure language is not as clear as it can be it's difficult language delia's knowledge is that but the intent of the contract interpretation is to effect the mutual intention of the parties here there can be no question that what the parties were referring to  implement that agreement the federal facilities agreement without any modification now under the federal facilities agreement covered by stockleigh the parties are currently studying when we deal alternatives for the buried waste now then they study remedial alternatives consistent with circus requirements and then collectively the parties choose a manatee now if all three parties can agree on or the final remedial selection decision is the says no then the best remedial decision is to cap that area there's an inconsistency the point is that with respect to sort well there are special statutory requirements that the parties agree to follow to make that determination mixed together and subsurface area if he only has to ship the south it's not a matter of shipping and the parties use the term ship to describe what deal he has to do they did not say but deal you must excavate everything must sort of the race to isolate that with a new definition of of transuranic and ship that out of the state also if the party said really intended that it can be x it can be expected that they would have said something about what is to be done with the court needs to consider that and that is the proper method of contract interpretation also the also the estimate if the parties really didn't know how much waste was there why include an estimate your honour's th your honor we understand that it's difficult language but the reason that the court should not do that is because the intent is to effectuate the party's mutual intent that mutual intent is clear here i thought intent was generally effectuated by reading the document and saying the intent of the parties was clearly expressed in the document unless perhaps are your and california or unless it's some sort of unique situation like the kinds of these i thought that's what it was so fast trust point we think that this is not so different from a u c c case because this is not so different from a case because this is a situation where a deal we agreed to ship waste out of the state and only on the issue the agreement had to deal with with delivering water you have i mean the general motors has done something internally a certain way for a long time that becomes the standard of the trade that becomes the normal standard i understand that a business that merchants deal in every time every time the merchants in this particular business a potato we think that thing that we think is a potato but what they really mean is a kilo of marijuana  here it's right it's not exactly the same but the definition is is any practice or method of dealing having such regularity or observance in a place place location or trade as a just fine expectation question it's relevant to actual evidence thank you very much all when you use the word all that means exactly what it says and comes on the reference to sixty five thousand cubic meters the government's pointed to something that existed at the time that attaches that number to something and you point to anything that explains the source of that number that is in the government's interpretation that is that it refers to the above ground stored portion well i think that the operative language in the agreement itself says currently estimated at sixty five thousand cubic meters but it was only that number wasn't plucked from mid air it's a reference to something and what i want to know is is there anything that you can indemnify that explains that number in terms of the interpretation of the contract that you're offering up while you are we did offer the affidavit testimony of kathleen trevor at well i understand you offer what seemed to me to be a construct after the fact by saying well if it's half a sort of works out can you point to anything that existed at the time or approximately that time that use the number approximate sixty five thousand cubic meters to refer to the waste that you're now saying the contract refers to you're out of with respect to this specific number sixty five thousand  that if you're going to say that there is a restrictive limitation that it only applies to sixty five thousand cubic metres the only reference to sixty five thousand cubic metres is a defined number is the reference that the united states  know you're how else can you explain the reference to sixty five thousand cubic meters i think the language of the agreement itself specifically says this was their current estimate of what the parties believed was the value of all of the trying to get anything that says that was the current estimate of the parties that being the waste above ground because if you can't then i'm looking at a contract that says all major league baseball teams of which there are sixteen and number well we know there are sixteen major league baseball teams around the sixty national league teams but something is there some dissonance here and i think that's the dissonance that the government's trying to identify as ambiguity what i'm hearing for you is that there's no other explanation for that number other than the one the government's offered so the contract should be read to say i shall ship all and i give you all a very powerful words the government problem i don't governments problem all transfer radek waste now located at the laboratory directly as to the question of why the number was inserted other than the agreement itself if you look at paragraph b one and compare it to the rest of the document paragraph the one in the agreement is the only for part of the agreement where the parties try to negotiate a schedule for the removal of the material they were trying to get at how quickly can you get it out get it to the waste isolation pilot plant and what volume per year do you need to move in order to try and come close to that schedule there's no other place in the agreement that's like that so the best evidence as to why and it's the only evidence is and it  appears from the from the agreement itself would be that the parties were trying to estimate what the total volume was that might possibly be out there in order to set those interim schedules and milestones that's the only thing that we have if you figure it's about half and half roughly sixty five again right and that is the best money mr ever has in her affidavit that that was the reason that they chose that number and the origin of those two numbers is the one we just said the just for purposes of clarity of the record even the material that is above grade is very or at least a large chunk of it is it's buried on a pad under an earthen berm so there even under the united states's theory there's i believe around one hundred square miles in size it is consists of about five or six different major components laboratory components the main focus of this is on a facility referred to as the radioactive management complex which is where the a large portion of the radioactive waste is managed and where the subsurface disposal area which is one portion of the art of the m c u not to bore you with somewhat adjacent but not necessarily directly contiguous to the train tyrannic storage area and i think that's a key point your honor a point that you raised when you first begin your questioning of the of the united states and  what you've raised with me why didn't you use morse white light in the billions more specific language here at the department of energy had intended it to only to apply for the sixty five thousand cubic meters of storage stranger an equation which again the word stored is not in the agreement  why did they not say specifically the way stored at the train journey storage area why did it why is the agreement written as broadly as it is to encompass all stranger anak waste located in the entirety of the l nine hundred approximately square miles of of located area why did we use the words currently estimated they currently estimated reflects the lack of certainty as to where on the i l they were going to find a stranger anyways and it also reflects that the temporal language of currently reflects the time at the time the uncertainty about what the total volumes of transuranic waste would be the bottom line is if you look at the entirety of this agreement and you look at all of the various clauses dealing with spent nuclear fuel dealing with high level waste and dealing with stranger and waste the clear intent of this agreement was to require the department of energy to remove all of the highly radioactive dangerous materials that the united are we reserved for other types of green issues we reserve all of the equitable powers of the court which is and one of the last provisions of the agreement but with respect to this that the remedy would be stop shipments changing we believe that the record clearly supports the fact that the department of energy has used the word stored interchangeably they have they have clearly made a distinction in their own documents between alpha low level the arguments about trade usage in establishing a common understanding the very evidence that they rely upon shows that they they themselves treated this issue differently in addition to which if the court is going to consider the the entire of that evidence which obviously we move to strike the judge struck the evidence and do not consider the purposes of the summary judgment if the court is going to look at that evidence then the court can equally look at the entirety of the evidence and that includes the rebuttal evidence th and it's you know it just is hard to believe that somebody could come to the court and say well this is what we always know that we yes we define the term to say this and we have a specific definition in the agreement but we really only met we really got something else and what we meant was transient waste and alpha low level waste when in fact when the state during the negotiations tried to get the department of energy to include the alpha low level waste in the agreement the department of energy repeatedly refused to include the alpha low level waste as part of the agreement clearly if you're talking about a common understanding of the parties as to the meaning of a term how can the parties have a common understanding when one of the parties is directly to the face of the other party refuting what they're now claiming is the common understanding for this reason your honor we believe that the evidence itself even if it were considered does not give rise to any ambiguity and in fact as the judge just district judge watch found it was merely their attempt to split hairs over the meanings of the terms getting back to i think the other point that you raised your honor which is these were not time she was tasked by the attorney general to work on this agreement and she in fact drafted and was involved in that and that's the only testimony we have is i understand it from anybody directly involved in the drafting and it's only her affidavit that appears in the record simply preserving the one thousand nine hundred one federal facility agreement and requiring them to continue to work through that process it does not act as they say it does to preclude the application of paragraph b one to the very least area it was simply a savings cla because agreements can be read consistently this is an agreement to the ninety five agreement is an agreement about removing ways from idaho in one thousand ninety one to the federal facility agreement is about selecting and addressing a whole host of environmental problems that the i d l we're not just tied into very waste area is just the tip of the iceberg it's one of our big pete big problems out there but we have all kinds of environmental problems at the at the facility that are being addressed to that if the parties that intend to g want to somehow act as it precludes that effect they certainly could have chosen language that would have done that they could have said this this addresses those and those obligations only they didn't and again they could have said if they only met the train training storage area they could have said the trains or any storage area and they didn't do that they said all train journey place located at the end you know we respectfully request that you affirm the district court  with respect to the argument that only it's all it's not something that we dispute all doesn't know but there is a question here all of what it's undisputed that there is a transuranic storage area and the word locator you didn't use the word stored you at because it doesn't include very based but they don't understand is that is governed by a separate greenmount nine hundred ninety one several facilities agreements and the evidence hi kathleen trevor and light of that statement of what what she said before settlement that it did not apply the buried waste now mr earle it was up here he said it's we can't is this decision doesn't stand we'll have to try and get this waste removed under the other agreement the one hundred ninety one federal facilities agreement now honors that agreement hundred ninety one and they had what they have a separate agreement governing it that regrettably again the language is not as clear but that is an indication of why it's it may not need to have been so clear the parties thought and wrongly practice lawsuits perhaps oh yes i think that's exactly what would happen that's precisely what would happen  a criminal prosecution against one of the major defense contractors and the defense kept saying look why don't you talk to the people who negotiated the deal your own people they'll tell you that we did exactly what they thought we should do the government went on after two years of litigation the government conceded app having finally talk to their people considered yeah you did it just right general dynamics because we finally talk to our negotiators and this sounds a lot s i just find this the evidence that we have this in the record is persuasive evidence of what the parties intended at the time i need to bother to go and talk to the people who actually were on the ground in dealing with this thing find out what it is actually last year you think that's something that you just don't need to buy a look at all you for i thought that you know i'm not afraid to look at your honor i have the utmost confidence in the position that i'm representing today and the department of energy that this is what was intended at the two weeks you find them you talk to them on the stand yes find them you talk to them and then you let us know what they say