argument is a it is somewhat unformed when we talk about warrantless searches and property rights when we argue our main issue being that the b l m doesn't have the right under the statutory right to require the operator to provide a key to secure facilities ahead of time and on that point it's your sect the second argument  question there is whether it's a permissive correction action by the district court and did you raise that issue before the district court yes we are a good record hadn't taken the action so it's a little hard to argue it before the court does it well the district court held that we did not reserve this on appeal at the at the agency level at the agency level and and in our opening brief  justification to give the b l m unbridled discretion to search of facilities in that one brothel discussion and that's the beyond's request for a cheater and the gates conduct inspection asia for one for each well stated that the big condition or the action it had to be taken was to provide a key or allow them to place their own walk on was mine safety and they said well congress made a finding that might say he's really important and we need unannounced inspections make sure you don't hide violations and that's fine we understand that but it kind of bites  and you know in and company in an inspection like ok show me everything i have open about door let me go down that mine shaft doesn't the regulation contemplate that there will be someone there onsite isn't that written into the regulation and wouldn't when you combine that with the key and and you then then your concern about them coming in on their own why wouldn't buy wouldn't that i understand that but but there is reference in the regulation to the regulation to that to having a person responsible person their inspections more movie be conducted during the hours when responsible prices are were calibration and so so inspections have been happening yet while this has been going on i believe there's been that one and i believe it's not record i think there's been one couple years ago the parties can't seem to work this out even though it seems like they're going inspections anyway yes it's just a we just want to make the record clear or have a document a decision that we're not in violation by not having a a walk or not giving them a key or having a lock in it so can i just ask on the fourth amendment on your fourth amendment argument is that limited to the o leave it sort of part of this argument because if you look at do we and barlow and they talk about ok you can have a warrant and warrantless inspections if you have a statutory regulatory system that provides where does it all fit where's the search i mean why isn't that a good argument that they may they've got the key trespass they're going into a home they're just trying to get over to the wells they have a limited there they're bound by law to limit their search to the purposes of inspecting the well how does the fourth amendment search element get triggered here will gets triggered as far as war over as far as maryland's concerned because question is that also the fourth amendment question well or is there something else the fourth amendment comes in to consideration because if you under chevron if you're interpreting the a agency's interpretation of a statute or or its implementation of a regulation it's state director and the ideal way and the district court you know we still have the issue of the number of inspections per year is up and gone to no because well because the the regulations says annually inspect issue because they weren't allowed to do that right thought they were issued because they weren't allowed and then they said the remedy was give me a key or a lock because they weren't significance that the o'hare's didn't sign the community's ation agreement that was significant with very not conceding there are fourth amendment argument which we clear what would work appellants haven't said what they said is give us what we had already was the ability to unlock the gate but also the ability to say we're not going on lock the gate therefore something has to allow for that so i didn't hear i didn't hear that from from your post and counsel what i heard is that at least for the time being things have changed it isn't that the hears are saying you can't come on times back the inspections are being done they' authority to make once a year unannounced visits and i think maybe i didn't hear correctly but it sounds to me like going forward what they're saying is if if you want to come and do a an unannounced visit fine come and do it we're going to let you do it isn't that what where we are at this point we have not maybe that there has not been a position that's been conveyed to b l m what he was wearing the counsel i'm asking what's happening right now and to be cleared let let me make this clear b l m has not come out to that to that property since those orders were issued so in case i don't i heard that the statements being made there had been no inspections under the noncompliance all right but given the concession that we've heard today why isn't this case moot because the the key at this point i'm sorry why do you need a key at this point because it is not clear that b l m will always think be i'd would like to go back to is the question as to whether this was raised before i d l a which rendered the final decision in this is that finally agency action here we have not to sentence is that the statements that were read here those are from the papers that were submitted to the state director of b l m what was given to i b m lay has been submitted to this court on pages thirty nine about the opening brief and page two of the reply brief if you look at those nothing challenges to see the what the correction of corrective action under the statute or the regulations there is a reason why the district court did not reach this issue and because it's because it was defined parameters that set forth how inspections are chewing occur in sections thirty one sixty one b of the regulations for example it speaks to those regulations that are directed communities ation agreements it speaks to site security only and measurements of oil and gas only and reporting of operations and production only it then goes on to say when the inspections will curb when the normal hours of someone who would be present on the site it addresses will be a b l m representative who's authorized it certain parameters this is in no way unlimited appeal an inspector is not going to come up at three in the morning and just start running around the property because that could be contrary to the regs and the reason that's important is because this whole claim is hypothetical it's based on the palings view of what b l m might do when they go out to conduct inspections under these i'm well aware it's a good one yes i see it look again if you don't i'd just before i sit down i didn't understand the fourth amendment claims to be directed to maryland as well as the o'hara's as i understood and as it was brief it was only to the o'hare's so i i just raise that because i didn't understand it to be the case why this is what what is your understanding of the fourth amendment claim even if it is limited to the o'hare's and what's your response well initially as i said it's based on hypothetical circumstances nothing has occurred that and this is a significant infirmity nothing has occurred that so now you're saying it's not right right yes yes well that's one questions i well maybe just to refine this a little bit so the remedy was give us a key or or let us part of the walk and that hasn't happened yet correct no key h a walk i'm wondering at what point if there is a fourth amendment violation what it would take to have one so with the actual turning over of the key be the fourth amendment amendment number one and then we do have to go into all of the messy laws fourth amendment as to for example what constitutes requiring a warrant when you have a highly regulated business which is what we have here or when you have other circumstances but we've explained in our brief that even if we assume that somehow there's been a search or will be a search on the fourth amendment that under the supreme court precedents there's a warrantless search would be permissible under the conditions that would exist here i would like to get some clarity also and to whether or not we're having an inspection you're posing council says there have been that you call and they they come and they open the gates and you inspect and everyone is happy in your own hands at the end of this your honor we have to inspections for us to draw from one in which b l m was not allowed access one in which they were i don't know what the third will be but there is now a non compliant the replaces says the elements to come on land that hasn't occurred so i don't know i cannot say and i don't think anyone can say for certain what would happen on a certain section which is post noncompliance water and what were point i wanted to make i do ways that is that document in the record that you were just passing back and forth yes i believe so you judge briscoe you remembered they were being a an issue as to the number of inspections that occur and i'm sorry your honor i don't recall that being an issue i know the regulations spe interest i thought you were you guys going to end up you could end up arguing about attorney fees because you put the b l m through a lot of asshole bring him all the way to the tenth circuit by just not letting him have an inspection so if you tell your client that maybe he won't do it again unless the court has any other questions hearing thank you the judgments the district