hundred seventy two whether the possession of public lands by these miners was in good faith and the judge decided that on summary judgment when the government has the burden of proof by clear and convincing evidence the essential argument is that this case first of all couldn't be decided on summary judgment second it couldn't be decided on summary judgment in this record and third that the district court should have mind doesn't that mean it's not in good faith no good the term of the under bagwell united states versus back well this court looked at two points of analysis to determine good faith and only one of the some parts was how much mining was done what the report really needs to look to is the extent to which the site is used for purposes other than mining and secondly whether a prudent person would be justified in expending money and labor in fact finder is being asked to decide when he or she is being asked to decide good faith when it's quite factors exist on the ground from which i can determine it's not a question of what's in this person's hand i'll agree with you to a point on that yes what the court needs to look to it isn't somebody cannot come in as mr bagwell did in the bad well case and say no i intend to use this mill site for milling purposes i'm just not doing it and in fact in that case he was actually using the property to raise livestock here however physical the physical existence of personal property or cultural conduct or anything else the physical presence on the property is certainly evidence that goes a good question i think it does and i think the government and there's a lot of junk on this property or personal property there is some judge yes there is there is equipment that can be used for mining and there's a growing orchard there there are there are plants up there i think the connotation of an orchard is a little inaccurate there are they there were ninety and now there are roughly thirty eight plants  not being used because this is not a commercial orchard that's why i'm saying the word orchard is inappropriate it was not used about ninety seven percent of the of the fruit that was grown just was eaten by wildlife natural to the area and the others that were eaten were simply eaten on the property by the miners there were no sales this was not a commercial orchard in fact what mr lao tried to explain when and when he did explain that is that he is that he's a very holistic he's a vegetarian he believes that miners should give back to the earth he think he thought that first of all the way the terrorist or should work it really filtered the water which was able to be used for the male secondly he believed in giving back to the earth he thought that this was a good thing to do for the property and we could debate whether or not the government would agree with that but it wasn't a come as a separate commercial endeavor such as the livestock in bagwell thir screen so that the operations wouldn't be seen from the road and he had a number of reasons for planting the tree none of them would be something that i would take with the other than mining and we could argue whether it's inches an incidental to min proof shows that it is it's part of the process used to filter the water for them else could i sort of you're partly answering the question i have in mind that the court went through each of the bagwell factors and as exactly which issues are in dispute were the material issues in dispute what the court analyzed and i'm looking particularly that excerpt three ninety nine t four hundred four of one of these yes we're basically the court acknowledges that the beginning and you you mentioned this as well that there's an issue of fact whether mr kal a critical factor let me not to avoid your question i just point i want to make about bagwell as bagwell was decided after a trial on summary judgment so that there's so the question here is i think and i think i'm getting to judge fletcher's question about a term of art i don't think you just look at what is happening currently to determine whether or not there is enough mining there to show a subjective intent i think under the two factors i think the first b factor is a little subjective and the second one is clearly object of whether anybody would mind there but you look at the history of mr latham on these sites these these claims go back to eight hundred ninety and his involvement goes back fifty years he has been involved he's done extensive mining on the property throughout the years the only reason there was a decrease in the mining is because when the f l pm any was passed  as united states situation he was one of the many miners who filed on december thirty first rather than prior to december thirty first so for a period of time he lost his claim he had to fight throughout the eight situations what mr lal is arguing is you have to look at the circumstances he tried to get investors he tried to do more mining he had me named mr leslie as one of the potential investors he named another a number of others he was trying to do this it was because of these three pieces of litigation here where he was not able to do more aren't you are you arguing that all the use was there are occasional occupants of the land but only while they are mining or milling mr ball the government claims that mr ballinger is only mining for a short period of time and he's living there all the being used for the purpose was described in six twelve well mr ballinger claims that his use is incidental because he is a caretaker and a guard that his use is incidental to the property but if this is a violation of  not good faith use i think there are other remedies that may be available i think some of the property can be removed some of it well my clients don't think it's junk but some of it clearly is not it is not mining related and some of that should be removed but not all of it and some of mr ballinger is residential use may or may not be incidental to mining operations he says in his deposition that mining goes on all year and they're claiming that  doesn't that's a factual issue and whether it's necessary for him to be on the site especially with the history that mr latham has had with claims jumpers i think this is a reasonable i think you cannot say on summary judgment that this is not a reasonable incidental use related to mining i think that the trial perhaps that we can cut down to use but what ejectment i think is the entirely wrong remedy it's the same broad brush approach i think that also applies to the counter claims although i really am not as concerned about some of the counter claims some of the counter claims clearly do not stay to claim it's an interesting theory to be a lamb went to congress to increase its powers but it's certainly not a  when judged well comes in and as well to the extent that the miners here are asking for damages in the eighty's it's barred by the statute of limitations does not mean that all damages are part of the statute of limitations because judge call used the violation of the regulation to say that it was not a good faith mind i don't think that that's proper and i think judge wiggins explained that if the jackman were going to be based on the regulations that different issue and i don't think that issue is presented by these orders or in the government's brief ok and if there are if there are no other questions that readers reserve the balance of my time for a republic their mining claims a significant issue here too is we've always maintained we aren't interested in keeping the struggle injure kabul or allowing from mining they can mine we do not want to invalidate their claims or take them away matters by the united states yes no your honor i don't believe the united states owns any and executed judgments against any of the defendants no orders relating to that or previously  there are orders your honor but i believe they are injured against they are injured by other creditors mr lao is not the united states and it was an execution of one of those we believe that caused the transfer of the really valuable mr bolling your did not show up at that argument without any communication to anyone mr allow he had applied to the court to be excused from appearing at the argument and that was granted so at least mr ballinger came one more time to court the judge asked him twice mr campbell do you have permission to be on these claims and mr campbell acknowledged twice that he did not and that would be the basis for our request that mr campbell be ordered not to continue any business there at all mr campbell is mining but but he hasn't sought permission under the thirty seven fifteen regs now i have been lectured by a different panel of this court in other cases about judicial stoppel and so we did put in our town or on a friend's ranch in the area and doesn't need to to be a resident of the public lands therefore he probably would not get permission under the regs for his current level of operation  question for me one without being as a labrat i was on the court's ruling on summary bagwell there is the referenced by the court of the district court that there are factual issues and much mining has gone on has there been an effort to develop and all those things were answered out of the defendant's own references mr campbell said yeah my tailings are there you can see them but you don't see much  four proposed plan of operations which is in the record showed a lot of agriculture development holding pond all of those things are there and they're shown in those photographs what isn't there is evidence of any mining activity a lot of tailings a lot of or any record of significant income from the discovery of samples or or from any of the claims or under good old common law trespass it's our land he doesn't have permission to be doing his residential occupancy there he has permission to process that and i take him at his word that he has permission from the current owner of the specimen group claims to prospect over there that's that's not our fight that owner would have the right to come into court claims against mr cabot he either had never given permission or decided the regulations aren't available for someone who was already involved in a trespass case when they were promulgated and that would keep mr lowry from being able to seek permission under those regs right now in the site he says i'm not sure this made it into the appeal record he says that he drives by the claims on his way to get the mail in town on your i thirty seven fifteen regulations that would mean he can nail this down i'm hearing this and i read this but i'm not completely understood what is the extent of the remedy you are now seeking against each of these three defendants and here you say well they can mine up there as long as they don't live there that's true for all of them i could you no forwarding address and mr calhoun had moved somewhere else and i do not know where but in your view and all three of these defendants can continue to mine so long as they don't stay there are leaving their personal property on a  these gentlemen from doing any bona fide mining they might be inclined to do we just don't want them to use the bad faith as a substitute residents into the indefinite future as they have for the last twenty years waterways but it's mostly just what you call scrub land i think that it's hot in the summer it's it's a little bit downhill from the city of america so it's probably somewhat chilly in the winter but it is not like high last question i don't mean to detain you too long i'm trying to figure out what if anything we should do with respect to the fact that judge croyle and his order did not based his order against  what well what we have your honor is it is a reject but that just gets all the property off after the plea that the defendants have a chance to sort out what they want to keep i have we have not gone to mediation i don't know if discussions as yet another another delay there still remains things to be worked out on the ground i'm quite sure if the defendants needed seventy five days to get their stuff off the rangers under the thirty seven fifteen for residential occupancy at which point they apply the agency can differ with him about terms and conditions they can't work it out we're back in court under an administrative procedure act review rebuttal factor and judge mr i would welcome the opportunity to be able to have this and in mediation i think there are things i think a lot of the trouble with this case is that there was a great deal of animosity and some of the severe difficulties but i don't think that that is so much a control issue i think that's more a lack of familiarity miners are not lawyers and they live in a different world they see the world differently  think if they were i think and i cannot represent them in the district court i'm not even licensed in that district but i think that if they had a lawyer a lot of these problems obviously wouldn't have happened but i also think there would have been more cooperation between the two sides and the animosity here the conflict here gave a lot of heat a little light and i think that's what that's what influenced judge coyle you know you look at his order and he rejects our factual positions entirely he says no we didn't do it properly we didn't say things but you look at what the government filed when they cover filed their statement of undisputed facts they said ok here's our statement here's a blank look in your statement now that looks surprisingly like and like an interactive tory but our responses to those were rejecting it judge coiling endnotes says that we attempted to dispute them but he discredited our volume two of the supplemental expert  well some of them i'm i'm willing to some of them i'm willing to concede this to whether the united states has has title to the property but they go on except for example at two forty where they're they're asked  first of all in the body of the order he says here are the government's undisputed facts and then to each line he drops in and out where he says the finance attempts to dispute this and he sets out what the dispute and it's one of those basically set out what what each of the intentions of the formal problem because there's not one of them and that's one of our arguments is that the judge didn't allow enough leniency for these miners and trying to represent themselves ok i got