of court october ninety four congress decides to give land to the state of california and the state of california says it doesn't want the land if there are federal mining claims because it doesn't allow mining in the park in august of ninety five decides how it's going to deal with mining claims on this land and it's very important because b l m is responsible for determining whether the claims are valid or not and because mining claim was important and in fact in the n w the says it was necessary to suspend plans of operations that have been approved but are not yet operational much weight do you put on the settlement agreement evidence presented on that because that was never raised before and in fact we went to trial based on judge food taste ruling on summary judgment that we in fact did have a property interest and this was never raised before there was not evidence about mining that happened post settlement agreement because our position was the core of the critical question as we need it own a  property interest at the time you files excuse me at the time of the taking and not of the time of filing suit and the federal government has essentially agreed the judge braden got that question wrong in the final decision so again we think the focus is what is the time period in which real force was stopped from mining which was ninety five to two thousand and eight and when when the temporary taking ended in two thousand  the settlement agreement it really doesn't matter what happened after that i want to talk to you about that memorandum of understanding which you're about to talk about so i understand the judge britain has said that it did not effectively deprive of force of any right i was just wondering what do you think the standard or review is that applies to her reading of the memorandum of understanding well i would normally say that it's a clearly erroneous standard  and what we're trying to figure out is what did the m o u in one thousand nine hundred five do to real force if anything and so when we look again a box on the ground in that time zone we see that there was a letter from to real force just three weeks before the memo you came out stating that there's an m o you coming it's not going to affect you real force you will be able to keep doing what you have been doing under your plan of operation and then and then when we look at the actual among you we see that there are a few different groups one is for people with plans for exploration activities and there's other people that have plans for operating mines and you  are from the late eighty's and early ninety's was authorizing you to mine two hundred thousand times annually so it looked like to me that you had a clear lane of being a  operating mine whether you chose to actually go to the limit of two hundred thousand tons or not of completely up to you but i don't see how we can regard not describe what the endo you actually said because the m o you was not in existence and we provided the the trial court with all of the draft and no use at the time that indicate there was never a discussion about suspending plans of operations so and i think it's also important to look at appendix eleven hundred there's a communication from lynn in the b l m office who was the purported author of this letter and he says real force was told in july of ninety five that it could not mine until the literate exam was done why did these different things meeting minutes for me of forces board that b l m corporate indicated that they wouldn't anticipated that they were going to be mining nobody understood there's no evidence to indicate that somebody should have known this was going to last thirteen years or ten years or nine years or eight years when there was a blip in the exam done before it took to you it took less than two years when there was one done on the common uncommon variety that was done in eighty seven down in eighty nine there was no understanding that this was going to be a long drawn out process and it only made sense that real force would continue to plan to continue to get permits continue to do marketing and to do the same spokesman like really are ok with which you agree that some plans of operation on their face are for money whereas others are fleurette exploration absolutely not and in fact the deal and witness on that point was questioned at trial extensively on that and exploration and mining separately as meaning different things do you agree with that well as oration terms of art that have different meanings exploration is just one part of the concept of mining i mean i would agree that mining includes a lot of different things say communications of the way through this time period that informed real force that it could not do any further mining in from one thousand nine hundred ninety five until there was determination what are you pointing at because i only saw a series of internal messages being sent inside of b l o eight nine years after the fact and then maybe one letter in two thousand and three or four from below two i believe it was silence and suggesting something to that effect but i didn't see anything in ninety five ninety six ninety seven ninety on its face doesn't say you can't do any more mining until after you get a validity terminations it says the opposite of that that you will be able to keep going as hard as you want up to the limit until you know and then when we get ability to determination we'll go from there i'm sorry i'm going to refer you to appendix eleven hundred which is a different document in which the illinois officials say we told mr assignments and in ninety five in july of ninety five but what date is that communication that you're a friend too it's july of ninety five no no the the communication you're saying that  and you know there's maybe a reading that supports you and says well they weren't really producing that much so maybe it's group two and then you look at group three and you see ok these are people that have approved operating plans and and so therefore simons who looks more like group three and then you look at simon since groups activities in ninety six ninety seven where there running around everywhere trying to find vester trying to find buyers not really finding anybody but they were actively looking at that present time to sell they were talking about well as soon as we get our village idiot from the nation then we can sell their wares they were looking for buyer right then and there they were looking for people to invest with them right then and there and they just weren't really getting anywhere is what i seem to be seeing and then things kind of go dormant for quite a period of time when it comes from whether it's simon soon or other players that were kind of moving in and out and then it's really only two thousand and three we're symes and kind of all the sudden now is interested in pursuing a determination so so you're under there's never been anyone to suggest that time is really wasn't group three i mean all of the communications are consistent that he was in court and again those are the ones from a decade now we're talking about you know this may be the record is next year and we have to figure out was a clearly erroneous for the lower court to conclude that  that what happened with real force was that it that the government actually had intervened and stopped real force from doing something in one thousand nine hundred five and she made a finding that no it was in that ca realize what about the i'm sorry but about the smar a reclamation project approval that you needed from the state of california yes in order to do any mining  after the ammo you did you need that smar approval it's complicated because the smart requirement for an approval is only if you  disturbing an acre or more of the surface and this is an underground mine and so there was a determination that no you don't need one and then later they came back and re measured and said oh now you do and so  in november of ninety five you got a letter from b l m saying you're going to need to get this mar approval yet because you're more than acre and a half or whatever it is yes and so go to california and there is that document and then that was how to measure and then changed so i'm just i don't understand why it took until two thousand and three for this group to wait until getting the smart approval well one it took some time and was still tried it again we're talking over five years later of waiting for the lid exam and it just took some time to get that done because it did not i'd like to focus on what exactly real force was told in one thousand nine hundred five because i think judge chen is on to something here there were three letters we discussed this in our brief the first letter is a very specific letter it's addressed to mr simon senate it sa transferred to the state of california that letter is as it says in its purpose it puts forth as a group between the state of california and the federal government it doesn't apply specifically to any particular mining claimant it's just a generic letter letting them middle ground in order for you to mine you need to get these the smart permits from the state of california had the bureau understood the memorandum that it had signed with the state of california to operate is some way of suspending mr for mr science and real forces mining claims why would it send another letter saying that they need to get this certification there's no mention of suspension in there and in fact the trial court when it looked at all the evidence that was there was submitted it pointed to these letters but also pointing to the meeting minutes and when you look at the meeting minutes there's a bunch of them were put into the record none of those meeting minutes suggest anything was ever discussed among the shareholders that the mining operations had  i think as one of their shareholders it told the board real force can continue to mine because the bureau is satisfied we can operate under our approved plan of operations the trial court did exactly what was supposed to do in this case it was submitted a bunch of evidence reinforced broad evidence of internal discussions that occurred and pointed out a decade later these are internal emails within the bureau it's true that some of those suggest that there had been these communications but the point is when you look at them when you go into the there we talk about how the focus group sort of took over real force and there is evidence there was an inspection that was done by a geologist it was it was conducted the focus groups submitted a new plan of operations that was different from the ninety seven and the ninety two plan that allowed them to to get two hundred thousand tons of homicide per year when they saw and this is at the appendix ten or one thousand and twelve to age one thousand twenty four the focus group with a disease from a new plan of operations a geologist shows up goes out there realizes this is land that's being withdrawn it's already been withdrawn the operation of mining was you cannot mine you cannot have a new plan of operations that would position that if folk in in ninety seven ninety eight decided well i'm just going to walk on to these lands that have an approved plan of operation dating back to the early one nine hundred ninety s and do with all the regulations so yes if if you had the right permits from the city california which your honour's actually correct they didn't have they didn't have a ninety five they certainly didn't have in one thousand nine hundred it wasn't really until two thousand and three that they sort of got their act together is it your understanding you have to have th approval after ninety ninety five before well they should continue with their approved plan of operation is what the democrats reflected in the record that's the that's the november ninety five letter that's the letter sent from the bureau to mr simons and saying you've got th approved plan of operations in existence in order for you to mine you need to get the right approval this some are approved reclamation of proof from the state of california if you're going to mine under your approved plan about gracious so you're but to just get back to fo your view is that folk in got tripped up because you applied for a new that's right plan of operation and feed it just it's here to the preexisting plan of operation from the early one nine hundred ninety s there was he wouldn't have had any problems that's correct or assuming again that you comply with all the other requirements to mine that was an approved plan of operations and this is going to the settlement agreement i mean take a look at the settlement agreement the the trial court looked at the settlement agreement called t existing approved plan of operations we're going to allow you to mine three of the mining claims that are at issue in this contest proceeding and oh by the way here are these four conditions that we're going to set forth that you have to comply with in order to mine on these mining claims there's a bit of a tricky question here on whether or not the real force has a compensable property interest here and you dispute that  compensable property interest under pen central under all the three factors they cannot satisfy that there was a regulatory taking here so yes the court can do this and the court has done this in a recently that shouldn't and the case that came out last week this was an unpublished decision but it basically says we're just going to assume that there was a valid existing mining right or that there was a property interest and it was it was still ok to dismiss the case i think that that's that's perfectly acceptable here the court does not need to find first if there was you can just assume that there was and then go to an address and central factors why isn't judge future these summary judgment opinions that there was a sensible property interest with respect to the three mining claims that you allowed to go forward under the settlement agreement wise and what he said there persuasive well i think that he's misunderstood i guess the whole point of the settlement was to grant real force the recognition from the government that it was free and clear to go in and do mining i mean without saying the words a valid claim in fact that's what it is i mean it would seem the cue here to have this settlement agreement and then nevertheless force real force to then undertake a brand new proceeding to figure out whether what it has been granted back and look at that but for under the terms or some of your own pointing out though is if in fact the settlement agreement is read to be a valid determination and to say that you have a compensable proper interest we the government cannot put those conditions on those mining cl look at cameron the department of the interior has an ongoing responsibility this land is still thiessen paly and that the government owns validity is a is it can you can have a valid claim at one point and it's not the case here but you could have  case where the government goes through that process there's a valid determination that's made the mining claim continues to mine and that and years later they file for a patent it may very well be that the market has changed conditions who knows and that meets now at the time an invalid claim the government can go through that process and up until the point of patent and if conditions have changed that it's not a one time thing that says ok you've got a valid determination as of this date therefore for the forseeable future you will always have a valid claim that's not accurate the delivery determination what we did in that contest proceeding the settlement agreement says the government is no longer going to contest the validity of these of these mining claims that's that's what the settlement agreement says we are dismissing we're resolving this particular contest proceeding there's nothing in the settlement agreement that says we recognise that you have to are valid or practically though that if there isn't a valid claim the land goes to california well had an existing approved plan of operations that predates that withdrawal you can mine under that plan of operations and that's exactly what the government did here the government looked at this they said ok you've got this contest proceeding you've agreed to dismiss the contest as to twenty we did not argue below you did not mind in that twenty four month period therefore you have no claim that they did they are correct to point out that that was for certain service so the government is waiving that question i'm not saying that we're waving that question i think if you look at the terms well be that we can test some of the things that they're claiming as terms of what they were doing so it's too late to contest it not well i think the somewhat the settlement agreement contemplates is that you would then have to if you have to enforce the terms that we would bring it back to and have to go back and look at this but that we would have to bring some sort of action that oust them of their right of what we think if we're going to dispute what was going on but this was this is a regulatory takings claim brought in the court of federal claims so i'm not sure  still have the right to come in and say you were mining over a twelve month period or any of the requirements were it's limited to think a ten year period another ten year period or what if they don't abide by that then yes we would come in and they would lose their ability to min would you agree that there was the taking regulatory taking for those twenty years assuming economic injury investment back the expectations and all potential your honor but i'd like to flag one thing that is from the point at which they understand their to affecting their rights they need to bring they need to bring suit they need to bring if there's a if the government comes forth and says stop mining within six years for a statue of patients they need to bring that that takings claim and if they wait twenty years the memorandum under their understanding their reading of this that prohibited them from mining they no longer had an interest if they're going to bring some sort of takings claim they need to bring it back time because they understood that their rights they've been prevented prohibited from mining real force took its interest in process this with the full knowledge under their reading of the memorandum that it taking and already occurred there's no way that real force can establish any investment a reasonable investment back expectations and there's no way th and eight and if force had not started mining in two thousand and ten then it would at that point have no property interest but that was irrelevant to our claim our claim is in the ninety five to two thousand the period was a temporary taking and that is the only time period and that's where you encounter the statute of limitations issue well so your honor we rely on what judge to take ruled which was that in  five the claim was not right yes the taking started but the taking claim could not have been brought and judge food tehran lied on the supreme court decision the first english evangelical lutheran church which makes that clear interference which can cause the taking can start earlier and compensation has to be paid from that earlier point in time but the claim itself in going into court may not be right until later and it was not right in this case because it was unclear what real force would have been able to do what it could mine whether it even owned the claims and i think the policy of writing this was furthered in this case because the claim was narrowed from twenty three mining claims  three and so i think judge food taste decision was right the claim was not right until later even though the interference which started the taking started in one thousand nine hundred five and  real force i think it's only reasonable that are relied upon that plan knew that it was not a producing mine knew that there was there was not separate kinds of plans of operations for exploration and this is corroborated even hundred five letter i mean our contentions in the trial court is it was never received as far as we know it was never mailed it was not signed it's not even on the eleventh letterhead as far as we know it's a draft letter but we had no knowledge of it because what they took notice of was that there was a suspension until a v e r was done this is not the case as in palo solo or in other cases where people have notice that some permanent economic impact because real force was years from actually getting into production and our position is whether the ramp up time was two years as we condemned it or for eight real four still last thirteen years it's all just been set back and that still has an economic impact littering it involved a half a million dollars investment in a decade of a man's life as to reasonable investment back to expectations i