may arise between the date of the district court's partial summary judgment and the day some somewhere off in the future when maybe perhaps there might be a demand on this fine and what effect those facts might have on say those possible liability ask for the meaning of the policy if the mining continues in areas that have been previously disturbed as soon as the mining continues you no longer cover the area is that right our position was that if go is liable at all after mining has continued that it would not be liable for further disturbances of the areas that had been disturbed prior ok that was the position i find you've got to declare a tory judgment if you need one badly enough now the rules that were set forth in the p c any case him the best to statutes in front of them in that case one of them was a licensing freeze we're not going to se language of luke on that comes from the act of cancellation it does come from the dispute over the the meaning of the bomb until it's right that if everyone involved in this dispute have the same interpretation of the bomb that we did that injury still would have happened thanks still would have been at risk of being put out of business for lack of a bomb so we believe that injury flows from cancellation and we have the clear right to cancel this bomb now do you think your position is  a second request which was for construction that we have the right to cancel the bond which there was obviously a case or controversy involved in that but i can't answer the question as  your honor to move on to we have argued that the construction by the district court rendered both the right to cancel and the defense of discharge illusory now the plaintiff side of the right to counsel has not been vong the principal response will go ahead what difference does it make to me under the safeco decision from the district court as long as i don't step outside the footprint of my mine i can mine for the next ten years on that property stay inside the footprint and i've got three bonding in perpetuity from from you i'll never have to pay another freemium you know out of that can't be the correct interpretation of this mind and yet it follows directly from the district court excuse me the plaintiffs have argued well if there ever is a forfeiture under this bond you can still argue the defense of discharge if you believe the facts supported at the time but the problem is that's not what the district court's order says and i quote and this is  one fifty eight safe coast liability shall continue and shall not be affected by the timing of any default by florida canyon now that sounds to us like a holding of live bill of a not a holding of theoretical coverage and that mean we've lost the defense of discharge no matter what happens in the future but even if that's not so even if we still retain that defense we think that illustrates further the advisory nature of this opinion because what we're supposed to believe if we still have that defense is that the plaintiffs came to the district court asking well if states go on the line on the book or art day and the answer they got from the district court was well maybe so maybe not an even more advisory opinion if it was that conditional finally to speak briefly to the issue of appeal ability you're honest this is not a waiver face what happened here and we've cited the cases both in our  reply brief it's called in the case this finalizing a partial summary judgment order we have a partial summary judgment entered in this case which in our judgment was about the linchpin of the case and the time morning your honor my name is laurence kershaw i represent florida canyon mining one of the three plaintiffs and police in this case although i do not represent the other parties i've been asked to speak on their behalf of the argument today that like to introduce my co counsel mr william  had the dispute not been reviewed then the government would have been required to shut down the florida canyon mine there would have been no further mining and the scope of the surety bond with regard to further disturbances and previously disturbed areas could never have gotten judicial review anywhere any time that of course is an important factor the courts have to consider in looking at writing this and this case was right it's also narry the argument that the injuries here were not traceable to safeguards positions on the meaning of the surety bonds but to the cancellation your honor it seems to me that argument is directly belied by the history of this case we are here today four years later after the bond has been injury that was avoided through the opinion and you just explain to me how the bond works in the following sam's what happens when the bombs cancel yet it covers certain parts of the footprint and on the last i mean i just  indemnification agreement that would set forth understandings between the parties about what happens in the event of nine payments that's a response to the question about that your honour's surety company would see collateral and finally the land part final part private lands and d l and the state of nevada operate under a cooperative agreement so that the two of them exercise joint regulatory authority but the bar and is held by  not having standing under the bond may or may not be the same question as to having sufficient interest under article three i'm sorry i'm just not having standing as a direct beneficiary of the vondra bring suit which  you your honor sure of three quick points first of all just prior asked whether the dimensions of the reclamation project could be separated out if they footprint area continued to be mined after the said the answer was no they couldn't they in fact the answer is a lot less clear than that the answer is it depends it depends on what happens if the character of what goes on in that mine after the date of cancellation is never be separated out is simply not so number two well we've been talking about what would have happened here and council painted a picture of tumbleweeds blowing past this min of the matter is this is extremely valuable mining property from apologies excerpts of page three where they say in the next five years they were planning on making twenty five million dollars in capital improvements now it's in the nature of surety bond thing that there are a lot of possibilities that are considered this isn't insurance where when there's a lost it's a fear of loss to the insurance company and one of the possibilities that's considered in the process of underwriting the possibility that if there's a default by the mining company a completely different mining company will come in and buy that leasehold interest and set and substitute out the surety so it's very unclear what would have happened in this case and finally counsel was talking about florida canyons inability to get another bond our view is that the district court's construction of  because it's a liability and partly for the forseeable future on this property without getting any premiums for it we've read one paragraph of the bond to create an absurd result and we believe that's not possible but counsel said well we haven't been able to get a substitute by response but that is why on earth would say to the district court's order they have three binding for the within the footprint area for the rest of the useful life of this mine and that's the result that we've been lied to by the court's order you know one of the things that puzzled me as i was preparing this case was the apparent lack of authority and i don't see a lot of other cases involving this question of this clause how come our position is further disturbances within the footprint are certainly not covered whether or not there would be an element of liability within that still that's another question your daughter and it's a more difficult to answer at this point but if you've got a situation where realistically and economically the mining would continue within the existing footprint your position leads to a virtual extinguishment of your obligation on the bomb because of predictable that they're going to continue to are it's not clear that that would be true that we would automatically have no further liability it would depend from one case to the next further questions will submit your i don't see any thank you thank both council for their arguments case just argued will be submitted for decision in the court will stand in recess for the day thank you very much