good morning your honor sir and may please the court a district court sitting in diversity must apply existing arkansas law not create new law here i'm sorry not what all not create new law this record should must apply existing arkansas law not create new law here the district court recognized that arkansas has a terminable at will doctrine that allows for leases that have an indefinite term to be terminated at will by either party at auction was recognized by the court multiple times and agreed its existence agreed to by by all parties a part that is defined of mining operations includes operations that may last forever have the admittedly occurred and might last forever that are impossible for the parties to ascertain whether they have been accomplished and continue the could the original agreement or the modified when i guess and sixty one could have said instead of for term of that term of years and then there after effect that it does last forever for example so it is possible in arkansas to create a perpetual lease but this least does not contain any words suggesting that the parties agreed in new and meant to create a is possible to do that but that was not done here even if you do look to the restatement even if it's appropriate to look to the restatement court in using the term indefinite was a term of art and not a term of common parlance where we just talk about something we don't know that when you speak of  e indefinite term it doesn't necessarily mean the same thing that in its legal meaning doesn't mean necessarily what you and i might mean when we don't know when the train is going to come regardless of judge holmes intent when he said that the lease was indefinite regardless of what he was intending to convey at the end of the day that arkansas law that well established arkansas law that's been recognized by this court in the arkansas supreme court at the end of the day has to be applied to the language of the lease mining industry were specific to mining or excavating gravel but those leases for first of all those cases did not apply the terminable at will doctrine to the language lease continues regardless of whether mining is conducted as long as mining operations continue as long as mining operations could continue and the lease also contemplates that there's land outside of this land the leas property that union has control of that it can it can utilise the least property to haul and transport materials from other properties across the lease property into its mill on this property so that's not mining that that is more in the milling aspect but the to answer judge arnold's question those other cases involve specific case lisa specific to mining as long as mining define when the lease hold would determine but then later on in luis i think maybe section six there's a right of entry on the condition and the words are to describe when that occurs are different from the words used and they have been a clause or they meant to be read together or are these different conditions and that's section sections four and five your honor discuss reason is that we can tell that from the plain language at least is that the term and they have been a clause says that the least last until two thousand and seven and as long thereafter whereas section five the events are these two different conditions it was part of they are two different conditions and that's not just because of timing well talking about timing proves the point but also it's it's demonstrated by the fact that there's different summary judgment phase their new interpretation which disagrees with the district court that interpretation says they now say this lease lasts as long as the mine and mill continue well if the parties intended that they could have said so created a unique lease that fits the terminable at will doctrine that must be applied in this case or why did this report disagree with your assertion of this term was indefinite i think the district court found that the correct in here you don't and will let me live fifty years but they may live a week but we were when they die it's all over correct and here we don't know when it will end that for example mining operations include stockpiling dirt on the ground that can last but it is subject to existing arkansas law and the only reason the judge judge holmes found that it did that doctrine does not apply is because it's cited to the receipt cited to the restatement but the restatement assumes that there is an event that is ascertainable the restatement assumes that that when you have a when it's talking about whether a lease whether a lease has an event and it it's it's not that and one dissent indicated that this is a that since two thousand and twelve there hasn't been a question that was not certified or not taken but the certified question was whether ok in the non mineral lease context we have the terminable world auction and the certified question was does that doctrine apply in the mineral lease context that question which wasn't taken up by the supreme court wasn't even answered by judge helms and his opinion now  he created an area an exception to the rule based on the landlord tenant part of the restatement so he did and in doing so he created an exception that swallows the rule so no matter what a lease term says in a their after clause according to this of opinion and the restatement it would be ok and we know that's not true from arkansas law explaining that certain lease terms mr chief judge may please the court good morning my name is barrett moore long with my partner robert stroud had the privilege of representing him in corporation in this matter and seated behind counsel table as mr gordon boll the plant manager of the guy on mine in mill i want to answer the judge's question first if i may the answer to the question about why the arkansas supreme court did not take the start five question is unfortunately i believe it's hard and hard to look behind their decision but i don't think they've taken but one other started by question from the eastern or western district of arkansas sense that tahn and i think what's happening is been shipped and there start a fight question and doctrine at the arkansas sure there was a divided decision columbia insurance group incorporated versus and mark two thousand and sixteen are one eighty five on a certified question where the actual majority said that this question was mo and they did mansur the question they went into the facts of the case the dissent said that's not really what we're supposed to do in a start but question so i think there's been some doctrinal shifts at the arkansas supreme court unfortunately as a practitioner of arkansas law i can answer questions but i don't know th this is the second part salacious materials must be shipped from the lessees mill or mills and so if the mill shuts down that and condition ceases if the other three conditions cease if there's no mining paragraph six for our honor i believe that those have to be read together but i think they're different events i think that that i say we're talking about paragraph five be the cessation of the mill for twelve months and that's what you're enforced ok my question was are those events will the one that the terminal at least so and the one that triggers a right a reentry the same that's my question i believe the answer is they are different events ok the words are certainly different yes and i think that at the mill were shut down under paragraph five day although there's a twelve consecutive month period that would say the least during the cure r we think the waste is ascertainable we agree with the district court we do believe that arkansas laws controlling we agree with the palance on that we think there's plenty of cases the support having a lease the continuous were much shorter and as long as a mine and mill presumably they're going to know it's going to be obvious if they shut down the mine or the mill i'm happy to answer any other questions that the court has we believe the term is  district court thought there wasn't controlling law i think that there is controlling law and i think that we have other district court decisions from the eastern district of arkansas perhaps we didn't do an effective job of breaking at them at the motion to dismiss stage and once we motion for summary judgment we surveyed a lot of other states and we found twenty other states three of which have adopted the restatement provision on point and buttressed argument and i think that it's been conceded on appeal because they had not make any argument about it in their opening very that the law of other states supports this and supports the conclusion of the district court reached there was a bit of an attempt to distinguish the restatement but it's not a cent they made at the hearing i think the district court even handed counsel has a copy has been adopted not this particular provisions i know they referred to another point that we made at the district court level and i want to make sure i make here today is that this typical have been them cause or something similar to it is the standard formalise for all lease and the language of that standard lease is very similar it's as long thereafter as oil and gas or either of them is produced from the above described plant or drilling operations are continuously continuously m no thank you thank you mister this rescue your rebuttal of believe have about three minutes may please the court just humans counsel just proffered a new interpretation of the lease and i'd like to address that they're now saying contrary to what they said to the district court and contrary to what the district court held as its interpretation and contrary to their summary judgment briefing that the lease continues so long as mining occurs or operations occur or transporting materials occurs and that material shipped so either one of the first three and shipping materials so that it can be ascertained that lease will end because if the materials aren't shipped there can be no but that's that's not a proper if shipping is required at all times which is what units council now says that the lease says if that's required at all times then why have section five be the judge arnold pointed out it would be superfluous you have to read all provisions of the contract to make sense together if at all possible it also is contrary to their thirty six deposition testimony as to his interpretation of the lease and also  make that a requirement so that new interpretation is wrong it can't be it doesn't fit with arkansas contract interpretation second as with respect to the colli case i just want to be clear that that is not the only case we are relying on this court three times has recognized determinable will doctrine and man brothers and braswell and union national the arkansas supreme court has recognized the doctrine and in griffin and magic touch so there are many cases recognizing this doctrine and the point is the key point is is that regardless of whether the restatement is looked to the restatement doesn't answer the key question in the case judge jones him self at oral argument summary judgment stated that while the key question is whether this lease term is indefinite and the council agree that is the question is the  at the very least if unions new interpretation is agreed to as the proper interpretation i think at the very least this lease is ambiguous the the interpretation of the lease that mining operations alone continue it that was  agreed to by both parties and the district court at the very least that interpretation is a reasonable interpretation to now we have competing interpretations and extensive evidence took should be looked to for the proper interpretation of the least which must be done in order to