any written decision it didn't say final didn't say anything it's in a written decision regarding a plan of operations but i think whether or not we appeal that is is not nearly as important as whether or not the forest service made a final decision solution and by that a problem harden why is it a problem that's an easy solution the real point that is not the problem the real problem is that we also have to have a pilot plant proposal which the forest service could not identify what that was and when we believe that it is in fact you know what a pilot plant is it can be completely different some pilot plants last four or six months or years some last for weeks some last for hours some do hundreds of thousands of tons of materials and do much smaller and so you have broad spectrum of possibilities that that's correct we've asked to do a demonstration project they don't they want to know what what what potential pollution there is what the transportation problems are to the pilot plant that's going to show that kind of things going to show them that well a pilot plant normally would not show them transportation kinds of things it would just show how the material is melted and processed in the plant but the the point that we're like to me is that our in our believes that this is not a precursor to actually developing these particular claims when you're smel carbon for the smelting process yes there are various stages to this particular project but our concern is that we were never allowed to  question through the court of federal claims to do discovery have a fact finding hearing on whether in this context the context of this particular case whether a pilot plan a proposal was reasonable whether it question is whether there's you know a final decision and as i understand it there were two agencies that were supposed to be people were supposed to be submitted to plans were supposed to be so that it and i just don't see that here a minimum  that has to be provided in requests and different things that riveted to the agency so they can make a decision a final decision and they were able to do that here because the new plan was not  facts we asked for discovery we did yeah what specific facts did you tell the court you expected to be able to discover we did not identify specific facts we made a request for discovery there was no there was nothing on the other side saying you need to limit your request i think the court does have jurisdiction to limit discovery at the stage of a motion to dismiss but the question is does the court have the authority to decide dispute is whether that has a basis either in law or reason or fact do you think it was some kind of pretext absolutely we did and as i think that we should have been able to pursue did not identify certain certain discovery either techniques or or questions but the one thing that we did make clear and i think it was you know briefing and in the declaration of mr freeman is what is the factual basis there is a statement by one of the four service personnel mister mr johnson saying i talk to experts and that's what they suggest we don't know who these people are we don't know what their level of expertise is we don't know again whether in the forest service has ever made this kind of requirement of anyone of any size and i think that that is relevant to whether this is a pre yes we could not find any examples of the forest service ever requiring a pilot plant test for any kind of a project and that hasn't that is the further reason why we think this was in fact the pre we have never had that asserted by the defense that oh yes we normally do this and here are the example any deference when there's been no evidentiary hearing i think that this court in the sinai cedar sinai medical center case hinted that discovery was appropriate in a motion to dismiss because the court noted that is that motions to dismiss when there are challenges to the jurisdictional facts can be disproven or of the facts can be proven with deposition testimony again this we were not allowed to do we would contend that first there is there was a final decision in that the decision was pilot plant proposal no money so at we think that that is fine but even the colorado school of mines that's correct he knows what a pilot plant and yes he does and the problem is go the problem is is that there is also why variety of what a pilot plant can be how big it is why you didn't respond to the other things the four service asked you for a new question might it let the the answer is the forest service was requiring something that we couldn't do and so that was the problem that we needed the court that's the power plant but what about the other stuff that i don't mr judge stolz question to be with regard to the other matters other question yes that the forest service was asking about like the water and that's right and we have information we why not because we have a hurdle that we couldn't keep and if we had a hurdle that we couldn't which was which is basically the pilot plan if we provide management that a pilot plant is a fairly common requirement in terms of proof of concept when we're talking about scaling from a bench test to full production and it's part of the normal back and forth between regulators and an operator happened after an initial application is submitted and the normal course operator will work with the regulator to answer some of the questions that the regulator believes necessary to be answered under its regulations in this case the forest service is charged with minimizing adverse environmental impacts to national forest service resources in approving any plan as well as doing nepa review and it just didn't have the information it needed to continue analyzing this plan to do so did its requirements i don't understand is that he came back and he says so you may be reading the record wrong that could you please could you explain what forest service believes satisfies the regulatory requirements and i think the second response to your question is that doesn't that's not exactly how the record reads in this particular case the forest service sense an initial letter the primary regulators responsible for analyzing this plan met with mr freeman to answer questions and to provide clarification to any questions that mr freeman had and according to their declarations mr freeman said during that meeting that he didn't believe a pilot plant was necessary because he had already proven to himself that this process works after that when mr freeman attempted to appeal that letter requesting additional information not his plan the forest supervisor and the regional forester both encouraged mr freeman to continue communicating with the district ranger to answer any questions he had about what was required in that i would plan and i would add that in the area mining geologist manner attached to the district rangers letter there were citations to mining handbooks to two different mining handbooks explaining the need for a pilot plants in a complex thirty year mining proposal like this citations to the forest service handbook explaining what needed to be shown during the development stage  processing facility in order to scale its operation so there was plenty of information and mr freeman's disposal about what the forest service was looking at here but i think that there is that in the record i  and the central question here is whether the forest service has reached a final one authoritative decision on the extent to which mr freeman can develop his mining claims or if there is further administrative process available to claims after b l m determined that he had not made a valuable mineral discovery at this stage the only question is whether there is an administrative process available to the claimants that they can participate in to obtain a more definite statement on the economic impact of the regulations the government understands that mr freeman distrust treated with this process and does not believe that some of the things that the agency and started some of the things that the forest service would like to see in a plan of our national survey that he has as i believe he said proved it to himself but this court gives wide latitude agency in determining what additional information is necessary under its regulations in order to continue processing of a mining plan and as stated early as stated earlier there are several regulations here that  implicate the spare bones proposal where the forest service for example in the two thousand and thirteen water the forest service asked for more information on exactly how the proposed stream crossings would work this is just one example where  without having a full understanding from mr freeman of how the stream crossings would work it would be impossible for the forest service to analyze the impact on the banks on the water from the bureau of land management that freeman may construct and or processing facility on public lands and sold and the type and intensity of developments permitted under the forest service mining regulation and therefore the economic impact of those regulations on these mining claims will remain uncertain the united states therefore respectfully request that this can affirm the decision of the court of federal think your honor the argument by opposing counsel about pilot plants being a rather common proof of concept requirement the problem is we don't have any examples we've never had examples in the years of litigation we've never had examples what did you do the look we made inquiries with us and could not find and including talking to reference to pile of plants out that's the problem that's why we believe this is being applied to the freeman claims or there are in our claims uniquely if you if you will so your client proposes to you extract rock in order to do that what's he going to do with it i don't have it in i don't have it in front of me right nor does the government well one of the things they reference absolutely if this was in ally's previously was analyzed previously extensively in regard to the freeman claims and he made reference to the fact that these are basically following the same fr when they were analyzed both in terms of animal analysis by the b l m and analysis by the forest service during an environmental impact statement these were thoroughly analyze sales which mr freeman has done it doesn't talk there's nothing in there about pilot plants and and that is our problem is that the forest service we believe came up and so that is why our position is that we should have been able to discover how the hearing on this issue to determine whether or not we have a final decision and again it appears to be a final decision no mining without a pilot plant we can't tell you what that is it's not part of your proposal  we're going to require it anyway and we are in violation of our own rules for requiring again as we spelled out in the briefing they had thirty days to do that they didn't do anything for fourteen