there's a fundamental distinction the merits and jurisdiction your argument looks like an argument about the merits what does it have to do with dr stiction well we we've i thought when we had the hearing it was about the merits whether there was any proof that the gas cylinders were used in mining and i thought that it was playing there was no jurisdiction but now the secretary is raising a jurisdictional issue and we're saying when you read the statute all the subjects of things that are you that are involved in mining are modified by the words used in or tourist in your position seems to be that if  claim is not proof the secretary doesn't prove what he says he's setting out to prove that's a shortfall of touristic what i'm saying is that the supreme court of the united states has held repeatedly that that is not what worth but we always worry about jurisdictional characterizations because if there's no jurisdiction that means we have to act even if the parties don't raise the problem that's one reason why the supreme court is very cautious about calling anything jurisdiction yes you appreciate that your honor as i say i thought it was a matter of of proved but what we get for the first time so i take it that your answer to my question  so when we look at the so the secretary for the first time on appeal raises this issue that there's an ambiguity in the statute when we look at what she says she is saying now that word structures should be read to mean everything inside a building and when you look at that you can have things that are both used in mining and not used in mining for example you could have a bicycle that somebody rode to work that day and if  inspector comes by and it's in the building there's there's a case if the bicycle is moved outside there's not a case so in we think that the statute is plain the the case was not proved in the event the court finds there is some ambiguity we believe that if there is to be any deference it would be skidmore deference but here since it's raised for the first time on appeal there is no thoroughness in the in the treatment of this there is no consistency has never been raised before by the secretary so if we don't think there should be any deference to the secretary in this case i may move to the second issue the second issue is whether northern was given fair notice that the regulation about principle power switches should apply to it in the situation we have here where we have a main breaker controls the power to eight circuit breakers which are down the line main breaker is thrown on and off every day by the foreman and when you get to the circuit breakers one of them doesn't have a sign on it it designates what machine it controls the fact is that the machine that it did control had not been used in three or four years but when you look in the issue is whether the northern had fair notice when you look at the  cases that we have from the administrative law judges the judge that we had in this case said in another case that no meaning had been worked out in the case law as to out of principle powers which meant there's no definition of principle power switch there's another thing on them is a switch that controlled more than one scene that's that to me is the commonsense reading of the regulation principle powers which switches the controls units so the impression that i got was ok what we have is we have the main circuit breaker over here pushed up the power and on pushed down the power is off and then you walk down fifteen feet and you push the green button and the machine goes up so we thought that's the principle power switch when the inspector came he did not see the he didn't see this thing going up and down he just saw these things and he said i'm going to call out a principal power switch and said ok so when we get in the testimony and i'm asking him questions i said what's the difference between a principal power switch in a circuit breaker he said you get four electricians you get four different answers on it so it's the cases they haven't arrived  the meeting the inspector didn't really arrive at a meaning they were looking there and reading the thing and say gee this looks like the principal power switch and then we get a citation it's did it did control unit right and one was on label that wasn't la to control even if it did control the unit that's correct but yes that's correct but the way the power flows is if you if you throw the power on the main switch then you still have to go down and push this and i think the idea of the regulation is you have to identify how to shut that power off from in and put it on and if you have a sign that's good or if you can tell where it is by location that's good too well the foreman does it every day and it looks to me in this case the inspector just didn't see what we just didn't see the power so if you if the main switches as in the phone and someone can't get to that post turning it off they can turn the unit off with the unlabeled the up but that's not connected that's that's not connected to a machine and the foreman he's the only one who goes in there every day so and the space of the machine was an operating and a third party contractor comes in if there's any problem with it so i think the problem of the danger is very low but i do i do think the evidence shows that we met the regulation so you know getting back to the first first issue this is  that my view of that is that it's all of course the evidence is that it wasn't used in mining it's there is it could it be dangerous there are a number of things in one of these places that could be dangerous we can go back and forth on that and this is an odd fact i'll concede that that you have these gas cylinders and it looked like somebody did use them and forgot to put the bungee cord back on that's an odd fact but i'm so is your argument just isn't it isn't mine in related it's not forested it's that the dangerous to to worry about no it's not mining related i think if you get over into the area where you're talking standards as it was in the shop that was considered part of the mine and because of that everything in that mine is certainly suspect the cylinder aren't in the category of an item with me of something that would cause one to pause for example if you were to walk into the yes shop and saw probably a side of beef or something cutting and welding they're claiming that they had no idea how they got there and i don't i don't understand how that could be said so i think this is part of a mind it's incredible to think that congress would give power to an agency to regulate a structure and half of the floors and everything there should be accounted for if these cylinders didn't belong there i certainly understand that they should have moved them away but if there is no in the  one who checked or inspector when he saw those two cylinders initially he thought that perhaps it might have been empty and when it they checked it they were full if they were to fall over very and how far the the cylinder might be of been the in the balloon analogy if it's a few inches it's it's pretty harmless if it you know twenty feet or something could be very so at the very least those machines are in danger where engender of of being harmed point out the record will show that we did you'd use gas but those gas are contained on trucks be it were an excavation demolition contractor also on these trucks run around that's where we have the tanks that we actually use and i would just point out in the secretary's briefing page fourteen she says the fact that cylinders were not specifically shown to be used in mining i think that confirms what the record shows there is no proof that these were used in the my dinner is there an ambiguity to the concept to be use i think that means necessarily that he has to have to be underground and so on if if the cylinder really could damage machinery that's used in mining wouldn't you say i don't i don't i don't think so your honor i mean if we i've had cases where we've had a car parked i think it was in the same facility and there's dust on the car and it's got chocks on the wheel and  the battery is pulled out and we got a citation because the parking brake wasn't set and we didn't argue jurisdiction like that we said it had been used one time to run around we got one guy drove his car down in the mind turn around turn the machines out in the morning to go get back out and the horn didn't work if we got a citation we didn't argue about that so you do have you do have some close cases but in this with this situation there was no there was no evidence that these senators had anything to do with mining