united states government i didn't know until this case is involved in the business of crop insurance since nine hundred and eighty the business of formulating such insurance has been left in private hands and what's supposed to ha what's important in this case is that the indemnification provisions i believe across the board in crop insurance are predicated on two factors two prices one at the beginning of the cross he's projected price and the other one determine at the end of the season the hard yards my understanding is that in most harm's price is in fact determined by a commodity exchange and that's how it's done normally it turns out that the drive being insurance the driver in hockey does not have a commodity exchange so the private insurer this is that had to develop this policy had to find some of the way of determining harvest price and what they decided upon was a publication of an arm of the u s d a major question in this case is for my clients is what was to happen when that data was not available because in the absence of this case involves the what happened when the bean market news did not accumulate sufficient data to establish the harvest price now the there is no question by the way the it's important to understand that the original  formulation of this policy and the original approval occurred in two thousand and twelve by the arms of the u s d a and apply only to minnesota and north dakota the following year the same entity watson associates requested that this program be extended to michigan and it was thirteen my clients bought crop insurance in two thousand and fifteen there is no the fact that this is but the key to this case is something that everybody in this case was working under a misapprehension as to the administrative record in the district court the government district court and i must admit my predecessors were working under a really serious misapprehension of the administrative record because my clients were arguing that the default sho this case was working under one critical misapprehension of the relevant and ministry of record and that is this original watson proposal was that in two thousand and eleven they must by federal regulation present a copy of the policy now is in fact the one that they want the u s d a and its arms to adopt act separate hardass press my clients argue that that's the way it should be it turns out that the administrative record was the policy that was submitted that got approved so  well it turns out that there's another interesting fact about these days some how we have learned now since the government violence proof in this case that there's nothing in ministry of record as to what the minnesota farmers purchase what their policies that but the action of the brief that the government has filed in this case goes outside the record straight that the farmers in minnesota in two thousand and twelve purchased crop insurance that's something different approved in which the r m a representative says it complete misunderstanding of a policy that's a private oh we understand that the projected price will equal the harvest price if we can't get enough data from the b and b market news and the hardest crimes when the projected price has been determined is substantially the same as that of sections three c five of eleven dash me are that eleven dash we are is the common crop policy wish everybody correcting the r m a person his misunderstanding the back is the devolved and even worse for the government in this case because what the government has suggested is there some sort of mysterious goings on after  ll that ended up in the change that the was imposed on the minnesota farmers as early as two thousand and twelve because they're suggesting that there's something that happened between a time i can tell you one second one question and in conjunction with that same ard argument it's your position that there was a significant change chair at the procedure relative to a significant change  followed likely what is this whole thing would have been discovered there that any discrepancies would have been discovered yes and it's very important just so you know regulations themselves define what is a significant change and what is a non significant change and there is no question that under the definition i believe it's seven c how are four hundred points on a one the definitions of significant and non significant this was a significant change  the court life overall on half of the federal employee is i would like to start before getting to the merits of the procedural objectional plaintiffs are now pressing here st with the common grounds which is that no one disputes that the driving revenue endorsement that they purchased and that was finalized even in minnesota and north dakota case in two thousand and twelve included as a default contingency procedure when the primary mechanism that the policy established for determining a harvest price was unable to determine to harvest price that is by reference to the market news as a contingency procedure in the policy their contractual relationship with the insurers provided for the substitution of the projected price in that case and then before again even getting to the merit as it's also common ground mr over  talking about my question is the five hundred and eight h language in minnesota that was approved in march two thousand and twelve that did not include the language you just referred to with respect to right well no because if you look at part five section five of the submission watts did propose a message knology for our how you would that's now i'm not asking if watts had a recommendation of what the agency sho asking whether the five go away h submission which was required to include the policy language that would be part of the insurance contract language you just referred to the five  for the federal crop insurance corporation to set the prices you got at the point i just want to make a study and i'm just yes but that does not provide i'm it's a yes or no answer it's an important question please give me a yes or no and then we'll go from fails we wanted not a mechanism i guess you know eyes as an outsider looking at this the mechanism would seem to be that the agency uses its expertise to determine as best a can harvest process i mean this is the sort of thing where an agency actually has expertise well why is this in the crotch why is this in the basic policy the exact same language if this is just some cipher that means nothing well the difficulty we have here and this is why revenue insurance is has not generally been offered for these type of driving crops for a number of years is that you do not have the sort of commodity market trading that has traditionally been used to determine both projected and harvest prices it is actually in the record that the difficulty of establishing a harvest price is something that watts as the private party proposing this insurance policy had to address in determining whether revenue insurance could be pride because it does provide value to farmers to be able to hedge against this risk but you have a difficulty in establishing that where you don't have commodity markets it is not really i guess everybody knows that in two price would have been it is true that the after reports reflect that the market had become illiquid for large parts of the harvest season which did not result in the market news mechanism failing us as a primary mechanism right is to review these things to make sure that this is going to be a sound insurance policy that is competent price mechanisms  isn't going to defraud the farmer somehow and that this is a product that you know within reasonable limits the farmers can rely upon is that is that fair that is fair i mean makes the policy sufficient and something that can be seen souls to produce and that is what happened in this case there is no sort of central mystery what we have in the record well let me corey move on to the mysteries and so on i mean so the agencies role is to protect the farms to make sure these insurance policies are the kinds of things that scribe into that and because sometimes you know these pricing mechanisms involved you know complicated question and so so the agency has expert review of the pricing mechanism particularly this one because we're going into uncharted territory outside of ringback and i guess the core problem and i'll just put on the table the core problem i have with the government's position here is that that whole process seems to have failed and it failed for the reason that the very price mechanism that is as you point out in the michigan being d r b e that indorsement that very price mechanism that says harvest price is projected price if we can't get the price data from the b market news that mechanism so far as i can  never been subject to expert review and consideration by the agency some how it got in the minnesota policies after the agency's approval without the agency knowing it and then the agency apparently doesn't notice that this change is being carried over into the michigan policy and so this price mechanism which has understandably i mean which these farmers are understandably really upset about this price mechanism never got reviewed by the agency and so the whole process failed maybe i'm wrong in some of that but i don't see how i am and i just can't really want to give you a chance to tell me where that's wrong track i do not think that is correct that the default mechanism was not reviewed and in particular it's the group it was one of the shoe experts that raised concerns about the primary mechanism for establishing the price that there is a possibility that the market new mechanism would fail and it recognized in that situation you would substitute the projected price hundred and seventy six of the record ok what is that is this part of the michigan application as part of the michigan application was in the original submission and they reckon it's got there was some possibility to a m s mechanism which fell rather in the extreme case where it failed to report for three months the harvest price would be equal to the projected price and the revenue insurance product there's an e mail a month later where i think the agency itself said what do we do if we don't we going to be doing projected price as hard as price if we can't get the data and watts the the proponent of this whole thing want says no no no no no no no the agency is going to set the price it's not just going to be this mechanical default and meanwhile i mean nothing there you described in that e mail exchange is shows up in the policy there's no nothing in there that shows that the agency approved the idea that  whether whether the contract says it or the agency always decides of this way that harbors prices the projected price of just there's no reason consideration by the agency of that pricing mechanism there's one dollar fragment if you don't have an amex report you substitute the projected price so that was the mechanism considered that was all but why would we i mean these are expert agencies and they're here because they're experts in these sorts of judgments expert judgement and pick a number i think it in this particular situation where you also had the risk management agency comments in january th well that's also in the materials before the commission the board indicating that setting putting responsibility on the corporation is improper because it transfers responsibility that under the regulations it does alter the private party proposing this policy that has to this is a difficult situation where it is important to have revenue insurance if it can be provided at farmers are to competitive disadvantage when they don't have that revenue entranced everyone agrees it is hard to determine what the harvest price is particularly in situations like we had in two thousand and fifteen and it is the private party that is proposing a mechanism to solve that problem the risk management agency i think fairly said that you cannot just kind of punt the issue in a situation where where the primary mechanism fails and that there are two threshold problems for the plaintiffs before you even get to the consideration of this procedural objection on the merits one of which is that you know they may be true entirely different arguments in district court they have not really indicate it why court has discretion to consider an argument that was forfeited mr court it should this is certainly not a question i mean the government quoted the wrong language in the district court the government told the district court that the five awaited submission minnesota said something you didn't say the idea that the that these farmers who really you know whether the law has a remedy or not these farmers really got a terrible deal here the idea that they can't make this argument now because they didn't catch the government's mistake sooner now when the government itself never caught it in a i mean the government see in this case made the same mistake that the board itself made in two thousand and fifteen and they didn't realize this language was him in the proposal so i mean proceeding only for myself the idea that we're we're going to refused to hear this argument based on the government's mistake you reasoning because it was deemed a non significant change well but i think in the record of your see the reasoning for why it is that they believe that the primary mechanism where it would function appropriately and it had already been rolled out in language the price mechanism was never approved i mean you know the agency's got to do better i mean you've got to they've got to consider the actual language in the policy that's submitted to them i mean you can't just say all there is some e mail that makes a reference to it notwithstanding that it's contradicted by another and the michigan the board with respect to the michigan proposal as judged by points out i mean it just didn't see that the language was different and i'm not saying it was you know bad intent or anything but the system failed so far as i can tell i would just add that i do think  the mission the expert reports that were provided to the board in connection with that do reflect consideration both of the risk that the primary mechanism might fail that was the focus of that agency's consideration because that is the one mechanism that have been identified to solve this difficult problem and the problem that d absent some other default mechanism it you know you cannot provide revenue insurance absent and it didn't find m could ask you a question about that yes i mean how do you think they they would do it you know i mean let's let's say i mean how would they do it without the being market news do you have a sense of that or i mean it's the i was referring to something that occurred after the approval because even after the approval you'll see that there was in fact and reiteration by watts the you know the formulator of this there was a the fact that this was going to be determined by the federal agents not not by going to harvest price equaling the projected price so even after the fact there was a confirmation of that and yet provisions again or are out of our policy so even after after the approval it's still there's no communication between wife's and the federal agency confirming the fact that this is in