the issue in this case is whether this record misconstrued section seven thousand two of reference section seven thousand to his an extremely important and powerful provision which allows for citizens to come into federal court to evidence of health act was not considered paper and we know that there is evidence of health problems submitted the district court acknowledged that yes the only issue i think that we have can address is whether  absolutely correct or honor and i want to devote my argument to why we think the court misinterpreted record in finding with this was not a situation that could be addressed by recklessly just going plumeri question because the heart of your argument is how do you understand th farming operation as part of the g the beginning of the case with essentially little discovery a day or two of their positions no document production and a very briefly at a time frame where there were many witnesses in a couple days who were burning almost entirely the need to get rid of the residue that's why they burn and there's no question that any disposal whenever someone disposes of waste and the reason is not because they have for a reason and the reason is a grass grows better but that makes it not a solid waste in this case this is something which before the this case was brought before the defendants knew that it mattered was routinely referred to as croc residue disposal if how do you deal with the legislative history put in a mulch pile of this was placed back on the soil certainly but what's happening here at the right is they certainly that because i mean there may be a difference in terms of the health hazard that poses somebody thousand under or percentage of that the rest of it is goes up and large plumes of smoke with go into surrounding areas and states and that and that and we contend make people say that's not fertilizer and to call it fertilizer just because some small piece of that winds up on the that and that very little frescoes of following here because sunlight can't reach the plant if you do it by burning we agree that burning is the most effective way of getting rid of this waste and so by doing that by burning they get rid of much much more of it than they can with other means and while other means are can do utilize it referenced old growth the testimony there was just that this is the most effective meth disposal and so therefore they get better yields the following year they have longer from protections it's all that has they have to get rid of what the statute that authorizes them to do this calls prompt residue disposal  the complaint or factual permitting the court to look beyond the complaint that's what judge law he did in this case he looked be on the complaining read to other things when you look at what he applied is the a clickable standard but in ruling on the jurisdictional motion involving factual issues which go to the max trial court should employ standards of clickable to the motion for summary judgment and as he did just as you quoted earlier he made a determination that there's no material it is not discarded and a key component from the american mining congress case had demonstrated it has to be discarded and you have a case of the ninth circuit dealing with circle of which talk about abandonment and the intent of  abandonment but the american mining congress case eight twenty four fred second eleven seventy nine says that you have to have discarded material it has to be garbage refuge for supplies from waste treatment plant you can look at the testimony just a plate of home witnesses learned counsel pointed out that the primary reason of getting rid of this material is just to burn it to get rid of it not so if you didn't have this material you'd have to bring material in you would have to have something burning but just listen to their own expert or their own witness mr jack what mr jackson was asked about whether or not the burning was the main just getting rid residue was the main reason he says that's only part of the answer if you go to the excerpt of record on page two twenty three in the transcript this is page two eighteen line sixteen the farmers burn the bluegrass plant i can you got ours you don't burn the grass in your yard so every year spray the grass comes up it doesn't produce expert testimony points out that you have to have some fire to create as to her owner's question about isn't there a longer period of time that this plan stays and if it's burning that's what occurred mechanical removal this is what dr glenn murray for respect nine years studying kentucky bluegrass was conducted thirty just using straight webster's dictionary definition by virtue of being disposed abandoned or thrown away i asked the question of these individuals what would happen if you would come or someone would come onto your property and try to take this off of your property and the answer was we would consider one press pass and two basically stealing our property they need this material it is not abandoned it's not discarded and aggressive point about the clean air issue and i that is a considerable concern to everyone farmers are good people they do not want to harm their neighbors with just don't forget that you have a very complicated and all of you know who have in california a very strong clean air act and in fact  material intended for recycling that escapes into the environment as discord and therefore within its statutory jurisdiction and what's very different here is that the recycling cases are old within a closed environment continuing to use a material it's they would have the same are our witnesses would say they would have the same photo induction the fact i witness is also cites testified that the thought that had been viewed for many years that you needed burning to shock the seed to create growth has been disproved by all of the evidence and really all it comes down to and i know this is neat and maybe that's just in the case that there is a factual issue requiring further consideration of a properly articulated standard but that all of the evidence is that the reasons for burning i into canada into washington and in montana these are this is if they kept it on their farm we wouldn't be here if they'd made this into fertilizer the part of it that becomes fertilizer if in fact that's true and we dispute that as well we dispute that there's a fertilizer benefit and our experts