raises the issue of whether the government mandates preferred of proving that the plaintiffs allegations in the federal tort claim act fell within the discretionary function exception and i think the simple answer to that is we are here this is the underground copper mine it in the copper mine there's a main drag and take you down into the stumps where the mining actually takes place in the mine itself the miners can't see because it's pitch dark and they're only lighting source are there how much they basically can't breathe very well because it's hot in the forced air fans to try and move the air through create such noise that hard to hear now over the historically what the mine had done it had operated using explosives to take the floor and what i'm going to try to explain your honor is that basically there's a twenty foot developmental level you go through and you shoot twenty foot of passageways and then when you want to mine additional copper you send the miners into stops you direct that they drill into the floor you blow it off and you mock out  your the significance of that is if you have previously roof folded you don't have the danger of rocks overhead coming down and crushing the miners unfortunately  family before nine hundred ninety nine the decision that they're going to start taking them back for reasons i don't understand the back is the ceiling but what they decided they were going to do is they were going to shoot two cuts through the mine each cut being about twelve feet deep so that the first guy would raise the roof the back from twenty feet to thirty two three feet and the second cut would raise it again to forty four feet i was looking at the ceiling and i was trying to determine if maybe this was as high as it would be after one cut the significance of that is that the federal mine inspector is required to respond to complaints of serious imminent danger down the loose ground or supported where necessary and it's our allegations in this case that the mine inspectors were negligent in responding to complaints that i'll talk about and in their inspections so what happens there's mr v in a way of a miner of thirty seven years with a lot of experience he's he's sent to do this work and he realizes because asarco doesn't want to spend the time and money group building he realizes you gotta be kidding i'm going to drill these holes me me and my two partners in valleys holes we're going to blow this back they're going to market out and they're going to send us in there again and those rocks are going to fall on our heads and we're going to die but he knew that he couldn't complain correctly to m shah because despite the statues the mines were telling me and so he wrote the letter i know not well this is a reasonable inference from the record because the events of the of the anonymous author was never  support which is the root of all things and they are hiding when you come through their burman off the areas so your inspectors don't see it and a man named  supervisor is there and he gets that letter and we don't know what he did because unfortunately we were prohibited from doing any discovery in this case but there were two sets of facts the courts can find because we have an inspector general report that says he basically did nothing with it and he didn't keep any records of it there's no record whatsoever to suggest he did it most women really rather he addition and challenge whatever factual assertions the government made and i was prevented from doing that my second argument is on the one hand the inspector general's determines that he doesn't effectively evaluate it which means at all  my inspector to look into this now the problem is there's no evidence that the inspector looked into it so on the one hand you have the inspector general saying he didn't do anything and on the other hand you have his deposition testimony in a case where the mine had no incentive to develop testimony in the same way that we did that the inspector didn't do and so you have that factual dispute in the situation where the government has the burden of proof but in any event keeping with the facts what happens know about the regular inspections section thirty u s c eight thirteen a sense you have to inspect the entire mine did mr violence back the entire mine we know that he didn't if you look in the inspector general report and in the actual record page seventy nine you will learn that mr rahman told the inspector general well guess what you know when i got into the mine some areas were bermed off so i didn't go in them and then it turns out the next guy who does the inspection again before our actions has you know they were in some some areas were burned off too when i got there i decided they probably meant i was too dangerous for me to go in them and the doesn't go in there and so there is a mandatory duty to inspect the mine in its entirety which at least based on the inspector general's report it is after the be clear they  in order for you t have a claim there would have to be his similar obligation under the laws of the state of arizona in respect to inspectors and so forth you're back now there's a kind munity that is under the arizona statute right like you to transfer that you know that there is an immunity that basically says you have to prove the government and government actors are grossly negligent right now the standard for gross e the state minus factor and i've got it on several occasions and it's true you have to have you have to be able to show that they substandard that they ran afoul of us from stachel rest of serious harm well well your honor with all due respect if you apply that law for the federal vine inspector in this case where they're basically being told we're caving in on the area of the mine and then we are sending people in the next that with no grounds to pour to drill holes in it and do it again and they're firming it off when you come to look i think not knowing the luck is run in the fall of a substantial risk of serious harm and i would be taken willing to take that i don't get a jury in this case you know i'd be willing to take them back to judge serious issue in this case which is whether under the goods american doctrine there could be a case in arizona we have cited the court law that says there isn't fact basis under the good samaritan law for failure to inspect in arizona there are three prongs out of the restatement for inspections and inexplicably when judge browning ruled that there wouldn't be under case under the good samaritan doctrine he only addressed the two standards and didn't address reliance of all anywhere in his order and i cannot tell place to work and in going to work that is sufficient under the restatement and under arizona law to make out of the good samaritan case to either under the statutory the minus factor statutes or under the good samaritan there would be a unsigned and that he didn't think they were specific enough there's also the same report also concludes that he did take some actions with regard to the complaints not he didn't order an immediate inspection but he did instruct people to to look into the evaluations and  physically possible in a couple of weeks which is how long these inspections hate to you know look at everything the same level of detail or concern or and that's just question her decision and again as you say because there are all these complaints perhaps the best course would have discovery find out well if there were to be discovery to find out it would be just like themselves would be extremely limited it would be the question would be did you inspect the entire mine did you you know that i don't know i mean i do know i haven't been there myself so i can't really say but what i do know is that the particular accident that occurred here the area where this particular accident occurred that area of the mine had only been open up two weeks before so when any of these inspections occurred they would not have occurred in the particular area where this accident took place and the conditions that made this area dangerous for blasting those that mr potter splendid occurred the previous day or whenever when they last up the ceiling that previous action had loosened the ground support that had been there previously so it was a dangerous condition that was created sort of this is the situation with  finding in an earlier case you know earlier instance that the particular method wasn't working what's an adequate in any given context would mean it wouldn't be found to be adequate in another one i mean it's very different from coal mining for example where there are very specific requirements for how ground has to be supported liability in this context we look to private person liability because there is a doctor and under california law that applies to the situation of fires getting out of control and even though it might be that the liability of municipal or state actors would be even closer the difference is that there's no private an allergy to the inspection statues where as there may be private analogy in a fire control situation well there is there is there are private there are cases in under they say it's a fact question whether or not somebody relied i think judge wright has comments make sense to me about why we should not rely on am shall when you're working for the mind that's its purpose and i bet the director of am k thanks i bet he has a website saying that what they do is make their minds in america safe for workers and it makes perfect sense but anyway and it's a fact question and it's a question we should have been allowed to develop a record on where they're building a highway in alaska they're not they're not actually it's it's not a landowner case it's a contractor case but the point being if you read the contracts in each location they shot forth in the car in the contract the there or the contracting officer has the same obligations that the m seans factor does which is to make sure that the general contractor who's primarily responsible for the safety of the workers and is the mining operator and i can see that point in a mine but the contract of the officer like the actual inspector has the obligation to see that the safety standards which have been applied by law here by and shop there by contract are the osha rides are same point is made in the rockies which is somebody who doesn't have a role are falling out of the protection on his back while it's a federal contractor with a contracting officer who is responsible under the contract for the safety standards on  rise to a federal discretionary function exception and so this court would have to distinguish its own response opinions under very analogous distinctions or are very analogous situations to uphold the  or opinion the last thing i wanted to say is and i sure miss martin just spoke with she told you that the first inspector went behind the berms well this reference is to page seventy nine and it reads this way during the