his restrictions went unheeded causing the rains call fire which is the installation and burned over one hundred and fifty square miles of adjoining properties including i do i got i want to get a little if and as the record reflects with the facts butin the plaintiff's favor as is required he issued a mandatory training restriction that bound the entire installation including the training unit so the negligence would be any after who violated his restriction including but not limited to mr holman and in fact the soldier who shot the shot in violation of those restrictions it's important to remember that your training could only go forward as specifically authorized the default that was was that training what happened last the commander authorized it and the scope of that training needed to be within the author conditions of training couldn't go forward if either of those are met and both of them were met but the record also shows if we look at his nd declaration that he retained the authority over the course of that day and he got periodic updates so why was it up to home  well your honor it's actually not clear that he was given updates as you requested or that they were appropriate there's a lot that we don't know we were denied deposition discovery and in his declaration holeman matthews's states that he's reviewed his witness statement and it's correct he never backed away from his restrictions and that they were mandatory it's not all your counsel i'm not arguing there but i do have a specific set of question so my question went to his declaration that was two years later and in that declaration i think he is very clear that he retained authority not only on an off switch at the beginning of the day but throughout the course of the day and then he got updated which is why  that's just a yes or no do you read that declaration the same way i don't read it the same way or rather there is there's a caviar but i would add that he does say that where you get to your caviar which i think is go deckle the witness statement that he made a month after the fire i'm just looking at the declaration two years later how do you read that differently and the salient points for purposes of my question are whether commander matthews retained authority and then he got updates over the course of the day do you read that declaration differently he does say that ok so that's why this is these are not trick questions we're trying to get our arms around a complicated  facts but that's why it seems to me to be very problematic and this is for opposing counsel's benefit as well that a month after the fire his statement was that he had these same two conditions and i think that is a little fuzzy or about who's got the authorities got the ultimate authority certainly that day although the question is during the course of the day but the but this a man disconnect for me is that a month after the accident he said that host fire he came to understand that the two conditions had been me only post fire so the inconsistency is whether he was getting those of babe's over the course of the day judge kristin you hit the nail on the head and that was the cabbie up that i was going to add is that in his witness statement of course he retained ultimate authority he gave a mandatory directive at the beginning of the day of two conditions are met training stops he didn't know that those conditions were met is the inference to be drawn from th that's the inference if you look at the statement a month later right now you talk about the statement of the ok ok and his subsequent declaration actually isn't inconsistent with that it's very carefully and  discretionary authority to continue training throughout the day i mean those statements are back to back and that strikes me as a very significant i don't want to get all your climate is fragments of very significant difference  and it gets back to just callahan's point if we look at the declaration just the declaration executed two days two years later it doesn't seem to me some matter what what range officer homa knew or didn't know because the information was going back to the commander and he's got the authority he doesn't deny receiving empty no but he doesn't testify as to what the updates are and ok at a minimum there's a disputed factual issue right after the fire he said he had no idea that the wind speeds and fires had come to pass and he says that it's excerpted it's quoted verbatim and our because here the government in its attempt to meet its burden heavily on the loose ends and the administrative investigation reports as well as on a witness declarations which the plaintiffs never had the opportunity to test i mean if know if the commander had said nothing under the training unit live fire exercises couldn't go forward at all because it's undisputed that the decision to the commander and training is the default of the new hypothetically assessment and what they are if you look at it are four hundred and seventy three matthews testify that he considered conditions like wind and and other stay fee considerations it's not clear that under the policy the decision maker was authorized to consider anything very abusive discovery requests from the other side document requests for five years of training records police logs fire logs they wanted to take eight hour depositions of dozens of people and they tried to s judge then can resolve that seeming inconsistency without at a minimum some testimony or some discovery or some sort of basis on eyes or not is an order and also a fight whether you know people get prosecuted for things and they said they were following an order and that's how we get into ending i mean i'm hoping you're not saying that an it but we're seeing we're seeing two things that we can't quite put together a lot can happen in a two year period of time and a lot of people could have talked to the commander and they could have said things he said you know maybe commander want to go on barbara immunity in the meantime and they talked about that exemption and then that the declaration sort of more along that if in fact he was after it was exerted on him to change n it wasn't sufficiently specific that it was ambiguous and trying to figure out is that because it was an oral is that because there was you know helen said they didn't hear it could you just speak to that what made that they want to record what made the is it the government's position that the fact that it was oral that doesn't make it that's not a fatal flaw is that your position is not a fatal flaw but it's wrong that's ok go ahead because there is evidence your judgment has to be made alternately was there an order conveyed over the phone and matthews after consulting with coleman later matthews has tried to reconstruct what's going on in his head right whether what and what he thought and dissent is actually conveys an order you don't actually you don't actually preclude anyone's discretion and what you're saying is that putting these statements together the problem is not that it was oral but that holeman didn't understand it it wasn't adequately commune a clearly communicated is that right successfully communicated i should say that's right and when  i want to go back to the very beginning of where you started it if i understand it plain to say this for all sorts of discovery you say abusive you know i think it's  proper way to handle this under these circumstances is through an evidentiary hearing right but the judge says no i'm not going to give them discovery and i'm not going to give you an evidentiary hearing i think i can decided and in your words make a factual finding just on the basis of what i've been presented with that seems very unusual that what you said your hon but my point is that and that might have gotten the judge's back up i don't know but my point is this there's a disputed critical disputed fact plaintiffs take one position there is one exception and that is the exception of plaintiffs are trying to rely on which is this court said that if the judge jurisdictional facts issue is so intertwined with merits issue then you have to apply t board on this day but the st going back to the st day you know this of course you know this record very well on the on the st declaration he says post fire after the fact that's when i got these updates right that's a that's a separate inconsistency is it not i'm not i'm not sure i'm quite following he he testified later that he going to the race and he says he was and they both say in their declarations two years later that he they he secondhand reporting post incident i understand that unit did have smaller fires prior to the large fire and the winds did increase ost fire about why it seems to me so important as why i was and i don't i don't mean to be giving people a hard time but we take the we're giving you both a hard time but this nd declaration in isolation right what would what would understand very clearly he not only made the decision to go forward with the training he retained it over the course of the day he received the updates and then it and then he concludes you know it's up and he's got the discretion and he didn't exercise it he let it go forward that's one scenario very different scenario than if you look at the st statement that he made a month later because then just when he didn't he wasn't getting those updates became good thirty but he wasn't getting those upda a chance to respond to my problem which if you're familiar with the house if possible the district court judge could resolve this discrepancy when he decides i as i read his order is deciding just whether it's oral and you can see that the problem wasn't that it was oral but that it it's not sufficiently specific to support your discretionary function exception because i think it's because ambiguous or wasn't wasn't successfully communicated right but this was done so those are two different problems this statement i'm looking at better he describes his own order as aciphex on that day so that's an issue of fact so which we've just talked about is the problem that it wasn't successfully communicat get yes as a matter of law even if colonel matthews intended to have it restrictions if they weren't actually communicated then he didn't actually have discretion that's what the resignation letter example i gave you before you know actually did say out loud this is a restriction of the phone cuts out or it doesn't even here it always discretion has not been restricted if you didn't actually receive the order the order has to be both made and received and i agree with you there is tension between not that's that's that's the number but why what how is the district court judge in the positions of credibility later statement over the earlier one place because matthew is reconciled that his earlier statement he's now acting on a fuller understanding of the world you see he's you know  ceases they're also getting these statements at a time after the relevant policies that change in mid august because of this fire the army said you know what for the rest of this fire season we're not going to use tracers until we can come up with you know a policy that  we like a little bit better and so two weeks later when the police officers are making their sort of well i was under the impression statement they were you know reacting against potentially knowledge that the rules have changed in the meantime so we produced in response to  kristen hit on a critical statement and the witness statement and there's the sentence actually before that sentence which i think is also important you know sex where matthew says i don't know who made the decision to continue training range well once the conditions were met to stop training i don't know who made that decision the inference to be drawn is it wasn't neat i didn't know that those conditions were met and i didn't decide to continue training instead my earlier directive of ceasefire was in operation and if that wasn't implemented i don't think that's wrong man or matthew in what other case can a party in order to meet its burden rely on an untested declarations and allow the district court to engage all right but by down that gets to supposing we send it back record limited scope what is required is factual determinations and if you're right that he was not in a position to make the factual determination space on this hearing well your honor there's two reasons why discovery is needed and it could happen in the context of an evidentiary hearing but in terms of the narrowness of it there are other policies mandatory policies that are at issue here policies about the kinds of equipment that needed to be present the training or whether there were the prescribed burns and maintenance happened and the government never met its burden it stuck want to show that those were you didn't receive well we have the firebreak policy the fire burn policy for example there's also evidence on the record that there were no prescribe fire burns prescribed burns just a policy require us what's the policy that you think you're entitled to what's your best shot which one what did you not get we didn't get discovery on whether those policies were in fact complied with so that is that a deposition you want yes we do the deposition discovery additionally there is evidence on the record of an internal policy against the use of tracers during the fire season and ok i know i do i d determining when the claim accrued depended on factual determinations about whether the dentist and properly diagnosed and informed him about his condition which this court said went to the heart of his substantive negligence claim and therefore the jurisdictional issue needed to be results in a way to determination and emotion on the merits or at trial and here to what a reasonable person would do in these circumstances is dependent on actual issues of what was the awareness of the restrictions that were in so we don't need i mean he would have that authority if he decided that the exemption didn't save them from trial then good for him but if we hypothetically think this is what he needs to do we can ascertain whether the exemption applies i mean if we have the authority to do that and some of the things you're asking for are things and if you get to go to trial might be perfectly appropriate at that point but well i appreciate that and seven we don't see the kitchen sink and that's not what this court wants to do but what we do need is you know at least a glass of