penalties for being inconsistent with the oil and gas tax one thousand dollars per day per violation and all the cap because you never raise that challenge in the administrative proceedings what exactly did they or you in the ministry because that wasn't real clear that was the really each penalty was was noticed as three thousand seven hundred fifty dollars right i got that right and so they wanted to reduce it for the reason black reasonable care to reduce two hundred fifty dollars and then i believe this these the seriousness of the environmental damage was a thousand dollars and they wanted to reduce that i don't recall exactly they want to reduce it to the entire or if it was to be reduced to some fraction challenging these penalty decisions they raised the argument of regulation section two four zero point one six zero which i'll just refer to as a regulation that governs directors decisions that it was invalid for being inconsistent with the specifically with the one thousand dollars per day per violation cap on penalties and yeah they forfeited that argument as it's clear on that under president that issues defenses arguments not raised during administrate proceedings cannot be considered on administrative if you review their procedurally defaulted they don't dispute that they were aware of the penalty amounts before the the before the administrators seedings i knew that was well over a thousand dollars they don't dispute that they council or that they never raised any of those issues or the penalty capital or the length of the violations at all however under ministry of a view for the first time they claim that no because the violations and each claim regulation to the facts of each case but also the supreme court has recognized that even if yours even if you're challenging the validity of a regulation or a statute that still is subject to administrative forfeiture if you don't raise it in the ministry of proceedings that tried to raise an argument that if the villages interpretation of the statute would violate that of the due process clause would be invalid under the due process cause they said no it doesn't matter that's a legal issue it doesn't matter that that you could actually be agency didn't exception and one of the exceptions is for one year when you are challenging apartments story but as to put supreme court made clear in in the new kirkby the guard case that we cite and that's when you're challenging the department's authority to press on the general class department and the director had the authority to consider both its violations to consider excessive penalties for it they say that the the ultimate penalties didn't comply with the one thousand dollars per day cap because they're violations each lasted one day that's the heart of their case it's a fact intensive claim it is that he the only reason that in this case the penalties were improper was because they claimed violations last week one day something they never raised at all below that even if this court were to address the other their arguments for instance if the regulation is invalid under the statute there what it should still reverse the court's order finding that regulation  want you to read that that provision out of the regulation that would violate the lease to tenets of regulatory and statutory construction it would reply writing out the clear explicit in the number of violations women that ever come into play well i'm kidding same purpose of it it would come into play when you have violation that lasted more than one day or the last at least three days because then it went because then  if three days the cap would you do one thousand per day of the three thousand dollars right that would be the cap that this is not that it's not the new direction that you go assess one thousand dollars for each day a violation it's a penalty cap it's a limitation of what you can history of violations the seriousness of the result of environmental damage that lack of reasonable care and so it provides and the regulation provides basically how you calculate putting in each of those factors it's not necessarily surprising would be otherwise there's no reason for it here though what their claim is is they come back and say no to be think the violations lasted one day we don't know why they didn't raise it below and the ministry of proceedings whether they just assume that light that apartment and that lasted longer than the facts of the case or if there was some other reason but they did they never raised that issue at all so if we argue that we ask on that basis at the very least the court reversed the order declaring the regulation  way now if the court were to go on and reach the director's decisions imposing the penalty we also ask that in a we don't think you should ever reach it it's a fact it's we said that's a very fact specific claim that the violations only lasted one day but if but i for some reason the court doesn't thanks to the fact that challenges have forfeited that it should still uphold the director's decisions both the penalties because of the because the record would support a violation a finding that the that each violation lasted at least three because i find that when you have an administrative review action and you don't and you we remember the this the decision back to the agency to reissue decision in compliance with whatever the order is it's not a  however getting back to that the issue about whether to uphold the director's penalty decisions each for three thousand five hundred dollars the pepco in response to our in response to our arguments in the brief don't have don't cites in order to support their factual assertions but each that each of the violations below lasted one day and which also just brings us back to the reason why forfeiture is appropriate because that's what the base case is about the fact intensive challenge apply the two exceptions in order to have a uniform body of law and in the interests of justice other reasons you don't need any more facts the department doesn't need to develop a new record and this is not this is a facial attack to get into your question  just as true a good question in terms of what it was that was even charged here and why are we here and that sort of sort of thing the department's regulatory structure sets up a penalty matrix which is the only thing the parties can argue in terms of the particular violation that was charged in this case the violation that was charged was a failure to maintain equipment in a leak free condition on the record and the hearing officer found as did the trial judge looking at the record itself and that's all you really need to look at here this was a one day event it was immediately as soon as the leaks stopped elation was over now what the department has done and you asked a question about what this twenty five hundred what happens is instead of following the statute which allows the department to have the discretion for purposes of whether they go anywhere for purposes of history of the violation and those kinds of discretionary factors they're found section eight it basically says in determining whether to take action dollars so the twenty five hundred dollars you asked about this automatically charged every time it has a failure to maintain charge because it has operates under wells in one county and it has more than five of that penalties in the matrix in the regulation presume to be appropriate here not to use my interpretation is the permit to have the right to rebut the presumption that the violation wasn't caused by a caused by a lack of reasonable care or you to be applied in a local situation the dollar amount therefore is that percent you know rip up all there is no evidence needed here the only evidence you need is what the violation actually was and what they were charged with how they were mediated and the trial judge looked at that and he said that the department's argument related to it's more than one day therefore it fits the the regulation statutory prohibit it should is is factually deficient because the court can infer the leaks were no longer recurring since the parties were in a position to report how much had leaked in other words the violation they were of failure to update you know and that kind of thing it was the leak itself that the department says oh this whole abatement period of time is is a period of time to get you beyond the one today well that's not correct because the abatement period in the stance you just something entirely separate the department of natural resources regulates operator conduct it doesn't record it doesn't regulate pollution it doesn't have the same authority of the environmental protection act as example to regulate the impact of the leak it regulates the leak itself so that the department for the first time is arguing that well this abatement period you know each each one of those days we can charge a thousand dollars well that's not appropriate that's not what that that access he have to find some bateman in section eight a as any appropriate remedial measures to prevent future violations such as replacement repair testing reworking a well and any equipment they are attached attached there too so the legislature is set forward what i do you know are needs to do in terms of this abatement period and if you don't meet the abatement period there could be serious consequences it is a separate file a ship i'm it's a separate violation of the code and if you don't update the violation within the period of time set forward in the everything it needed to do it did it quickly and there's no there's no evidence in the record that this abatement period is part of the violation that the department says well that's on us because we didn't argue it at the administrative hearing it's not on them because they would have been able to develop a record well i would suggest to you that it's the department's responsibility to appropriately set forward a series of regulations that appropriately talk about what their authority is under the statute and here they're prohibited it is a prohibition the legislature put on them that said no more than one thousand per day per violation and here every time i'm going to has a binding on the department hard at all as to what needs to be done and i would ask your source like everybody at this hearing is getting on the train and at some point some is going to ask where is this train going and  who's operating the train and that's the depart it's the department's responsibility with their regular construct to make sure their regular construct follows the law and in this case it does not and that's one of the reasons why waiver is not appropriate not only do we not need to find new facts the facts are already there we know what they were charged with and they fixed it immediately they shut the well down it's not leaking anymore so it really was a case where it didn't go over one day americans have a construct that says well you know as long as we have this sense that serious limitation one thousand dollars per violation and they need to understand that they need to define what that means and their regulations do not do specific challenge for just these two cases that are for you but the entire process is suspect because it just gives the lives service to the one day a quarter violation challenge and it doesn't because of what i said about the abatement because we do not believe the debate and we think that you can look at the law and make that determination the abatement period is simply not heart of the violation that they were charged therefore most of these that doesn't end the query because that's not what their penalty matrix does because their penalty matrix automatically charges my client twenty five hundred dollars just because he's had five previous violations without regard to what the dollar co pay regarding not emergency medical and dental care for inmates and the supreme court says well yeah you're your rule mirrors what the statute says and the statute allows for an exemption if you were if you were  if you were indigent what the department then did is that if during the entire term of your incarceration so would they did in their in their regulatory construct is totally swallow the entirety of what they were allowed to do under the statute here we have to stay actually toward a limitation that the department does not it just it says yes it's a limitation but in practice in its process it doesn't follow it at all if you don't have the authority to have the penalty matrix the way that they've set it up then you have no jurisdiction and therefore waiver does not apply this court has reached many many situations where the for example with the department of bag the department of baghdad hearing process that allowed itself to hold hearings this to grain dispute between farmers and grain operators and this court says you know you don't have the things and the only argue with the hearing officer about was their reasonable care here in this case actually the year officer found that there was no proof that that had come didn't recognized it for what it is that this was a one day violation it was stopped as soon as it started it but the parent was with him this is for you to charge the thousand dollars which is why you know it was remanded back to just implement the thousand dollar penalty and we did not appeal that thousand dollars but but it was not within their authority to create this penalty matrix that they have and that's why it's important for this court to understand that we need to have a uniform body of life here in the interests of justice that that reflects this statutory construct and this one this one simply does not  the trial judge understood this if you look at the hearing officer himself he was very frustrated with the these true jacket that he felt he was in in terms of this penalty matrix and in terms of those the rules themselves as the amount of any penalty is presumed to be appropriate and again none of that statutory authority so basically it's not good enough that the department simply reflects the statutory authority in the rule you have to look at the entirety of its process and when you record i'm not here asking you to go beyond the record that is before you because the record the beef before you is exactly what it is and it allows you to make a determination that the think that they were charged with was a one day violation i didn't i mean i raised this is an aside when i filed the brief in support of the complaint for administrative hearing i said that you know this is this is you know a process that is not authorized by the legislation and essentially we have a one day violation here and there really isn't any good argument that the department can come up with that would allow you to find his measure of law based on the the regulations this is more than one day here i'm sure the cell says you know we've heard a lot of evidence about remediation actions but as far as i'm concerned it's about the violation and what happened to the violation what caused the violation what happened after the date of the violation has nothing to do with the issue i have to accept so so they're raising something that in fact is a red herring because all that you ought to be looking at it seems to me as a matter of law is does the regulation does this penalty make tricks find its source in the law in section eight of the law and infection twenty five i think of the law as well each of them restricts the department to u one thousand dollars per day violation and per violation and in that post case every time they have a violation it's an automatic thirty five hundred dollars it's an automatic twenty five hundred dollar ad simply because they've had rocked by previous violations and that's without regard to the department coming forward and asking itself well really was this how long did this last and the only reason that they're arguing that now is and coming up with this debate period is how to violation it is is something that's a new once that does not find its source in the st e as i said the abatement period is something different so the trial judge was right to suggest that this is not authorize that because it's ultra vires it's void because they're doing something they're not authorized to do and again just because you know it's written in their regulations doesn't mean that's  voidness is a fundamental defect that cannot be waived by a failure to object whether there was a lack of jurisdiction which renders a judgment boy is a matter which can be raised at any time so and that's what we've done here and an interesting you know justice tour you asked another order so that so that there was a final administrative order and as long as the judge said both things he had to do one thing or the other view i did not remain and just say ok i'll take out the  had to remain empty for purposes of the implementation of the thousand dollar penalty and that's what he ended up doing so in this case there's no reason if you agree that that this regulatory construct violates the statutory authority of the department and i think that you should it i think it's very clear not just from the record from from the right itself that they're doing something that's not authorized then  it is a boy and it needs to be and this court needs to exercise its discretion and looking at how departments issue regulations and whether those regulations find their source in the statute which creates them and if the answer to that is no there's only one alter it and that is it boy dab initio and what really needs to happen here is this needs to go back to the department  declared the penalty matrix void and let them develop a process and a regulatory construct that gives life and brats to the one day poor that to that prohibition that they're supposed to be applying as opposed explain repeatedly that this does act on their entire challenge did revolve around the facts of the case and around their actual claim that this that each of the violations in each administrative case lasted one day when she went to look back to the circuit court she looked at an as applied claim as well it looks just to whether in these circumstances the application of the regulation and the penalty post under it violated or didn't comply with the one thousand dollars per day tap counsel also agreed that the because it sets out various ways to calculate the components of a penalty and that could under certain circumstances again defending on the facts of the case the particular violation failing to maintain a we d on a case by case basis here they never challenge ship they never raised the issue they never seem fairly to believe that this violation was less than three are less than four days long they knew the violation so you get a penalty was being assessed for thirty seven hundred  three thousand seven hundred fifty dollars they knew that there was a one thousand dollars per day cap with they just they didn't think it was if it was in play in the in their particular defense they didn't raise that matter the history when you look at each of the components of the penalty if you can depend on the facts of the case you don't automatically buy the history of violation one thousand dollars it matters you look at the facts were they did they are finding them previously for a violation of the same type of the same regulation same specific type of violation if it was and as i think it's one hundred first one hundred dollars violation keeps going up to a thousand to twenty five hundred dollars and then whatever you're imposing under that though is still subject under the expressed terms red herring he clearly found that eight can rebut any of them any of the components of the penalty he said it depends on the apple the a political situation so and that that is the facts of the ca but under the plain terms of the regulation another actual defense another a political situation they could have raised is with a violation in this case lasted less than four decades and then tried to limit according to they never raised their that up they never raised that challenge counsel rick if you could leave refer to a prop the entire process to the practice the penalty matrix there is no net penalty matrix there is subsection c which nor is there any practice or policy that ever raise that in the administrative proceedings to for that give us because how you give the department the opportunity to develop a record on what kind of policy or practice it at which in this regard there is no evidence of any policy or practice to disregard it all they have decided to disregard the one thousand dollars per day cap what they have is they disagree based on the facts of the case with the with the penalty and claim that in this case you did not comply with that cap if you