having heard that i did have a chance to just briefly review the prescott case and also the miller case and actually in miller that standard in a light most favorable to a nonmoving party because we intend to impose washington along so what but what we're dealing with here now and hopefully i'm responding to your question and that is that what we're dealing with now in my view is the technical exceptions the you know is there a policy under the discretionary act of section and also this this issue of independent contractor was the duty delegated have the time of the fire for fire protection on  and there are a number of abbreviations here and bear with me but i hopefully the court will follow along with me and i am it is the government's burden and i know it's been pointed out a number of times that the i want to service agreed to manage the elite and he agreed to manage it consistent with this nine hundred ninety three ailie management plan and the kerman specifically states that the plan was approved by the but more important and under section for all three of this agreement the death of us agreed to be responsible for coordination of fire protection on the early and section five point five so that until the  our argument is more importantly right after just several weeks after this agreement was entered into between these two federal agencies now this was not an agreement between dealing and floor but what happen is the deal lease sent a letter and sent a letter on july seventeenth which is an evidence this letter was directed to the floor and its whole floor that basically fire protection by the hand for fire department paid it only even though the supposed to be for fire protection it only deals with fire fighting and it doesn't deal with fire breaks or fire which protection or prevention excuse me on the elite which is also part of fire protection other which fire protection covers the gamut of fire fighting fire breaks and other types of fire prevention and this is if you'll notice the deposition of chief good in a meaning of fire prevention and he agrees that there are differences in these words and then the some substance of our argument though with respect to whether or not at the time of the fire there actually had been a delegation to an independent contractor of the fire protection duty other than for firefighting is the fact that these actions of deal with sending after having entered into the permit in the  floor contract did not cover fire section on the alley at the time of the fire and since one thousand nine hundred ninety seven when these actions were taken that's our position and and your life on the stand is that your position is the contract with the fire fighting group didn't cover fire yes your honor your honor and let me let me just be more specific and that is that i believe that previously part in one thousand nine hundred seven i don't think there's a question that there was fire protection fire protection a cooperative agreement with s w s which provides how handsome fire department is going to get painted and last there unless this concept is that the fire protection on the elite was taken out of the deal we floor contract i mean there would be no reasons for this agreement it's just that they only entered into an agreement for firefighting and not the other aspects even though they were told to deal being dying for at floor and then next to dying for was told to go ahead and deal with bamford fire department directly and arrange to get reimbursed in a range of coordinated the fire protection activities i know it sounds a little convoluted but cooperate if agreement which allowed to have for fire department get paid there being no reason other than for this ok so my our view and the cooperative agreement only covered firefighting but they were told deal protection which covers more than just fire fighting but that was the only agreement that was made hence the government had retained at the time of the fire there was no delegation for anything other than fire fighting on the  easement that requires them to do anything in relation to fire protection and in fact the record bears out that the the only reason why the department of transportation was doing any work on the roadway was not related to fire protection they were just let me just point out a cheat sheet good makes it very clear that deals he did not that that deals he is the that they now have a fire department had no response ability for the road and they were just aiding the o c is a good because business practice but more importantly the issue has to do with whether the whether there was an obligation on the part of the united states to deal given this plan was actually approved and i think that's really important and in addition to that the the fish and wildlife report of the fire actually recognized this plan as being the plan that was in force at the time of the satisfied i would submit to the corps that the discretionary act exception does not apply in this case the the argument here is that is the u s as a land owner and just like any other land owner in washington and i would submit that the court the f c c is especially great when the government takes on the role of private landowner and in that case by the way the irrigation system had previously been maintained and then they let it not you know go to become an  very it's very interesting because it's it's similar to our case where it was not me it was maintained and then not meeting the fire breaks but if you compare that to miller if you compare that to miller which is a fire fighting case which dealt with the allocation of resources to do different fires caused by a little lightning storm that is a fire fighting case we're not dealing with fire fighting here we're dealing with an allegation of the us as a landowner based upon that second case to address some of the things of mr wolf talking about directly one of them is the allegation that the plant relies on just one thousand nine hundred seventy around of understanding between the department of energy in the fish and wildlife service somehow change the contract between provide fire prevention all the way through two thousand and one of year after the fire that's the contract extension wouldn't have occurred if the fire prevention activities weren't required through the through the subcontract  have to admit that the way that this works and he has a reply that that i after seeing the replies to me arguing reply i wish that i had had an opportunity to further brief but let me let me tell you where they are so that  for fire prevention and it's not just the amount of my which i think is is surprising it's in the tens and hundreds of millions of dollars per year but s t r seven shows the fire prevention activities continued to years before the fire over one hundred million dollars expended the it's on page seventeen and eighteen that's it talks directly about fire prevention at the hands of fire department even after the memorandum of understanding even after the fire was continue states as the owner maintained some obligation the the answer to your question is as a land owner they do have some obligation however and there's a however there i think it's lovely that has indicated that the united states hypothetical if they have if they see that something is the right do they have some sort of a duty i don't know if they have a duty but they do have a duty they have a responsibility to make sure that they're getting the benefit of what they paid for and it's a contract and mr christianson was the point of contact for that for the apartment energy  to determine whether or not they were receiving the benefit of the contract so to the extent that they have overall supervision i think it's the way i would put it i think that they do have this this umbrella supervision but this is specifically the day to day activities which from the hanford fire improperly failed to prevent the fire and improperly failed to fight the fire those are the allegations that are raised there's no inappropriate supervision or anything along those lines interestingly i did address those issues in my brief or just share it just in ideally for certain aspects of operations that may be on and may have affected the l so the the test of the contract itself the testimony of mr klein the manager the testimony of chief good from the hands of fire department are all supported by the very documents that the plaintiffs rely on that side there are contractors out there who are still doing their job and it should end their jobs going to affect the ail part of those contractors who are i specifically identified as dying corps which is the hanford fire department  and interestingly enough the contract continued not only for the fire during the fires and after the fires judge correctly determined the facts in this case and that but there was a contract that issue that two parties not part of the contract didn't change the contract between florida and the hanford fire department and that all actions including the testimony and the action including payment of tens of millions of dollars are all consistent with the hanford fire department doing fire prevention on statute or regulation of the united states rather its intent quote intended for guidance it is something that the that the heir to the manager of the ale can utilize in determining their own judgment or choice and it was a quote if i could find  that there was no proof that judge refused me that the chief good actually did some sort of a policy analysis we have the issues that he that he identified as being specific at the end of his declaration but that the analysis although in this case he did he indicate that in his declaration the plainest and the third and final point argue that there are some distinction between the operational management decisions and that there and that because i think is in the in tolling in some cases  i wanted to respond to a couple of statements made by mr tangled and first of all i want to state to the court that i happen to know mr tangle i know is a very honorable person but i believe some of the statements made in this weeding with respect to the dying  contract and the eighty million dollars guy in court i had it marked here but i i don't really have time to set it four times court provided many many many services to the hanford site emergency services were one small infrastructure and all kinds of other aspects to the halford site so this eighty million dollars in the reference to the alien that document does not have anything to do with whether or not there had been any change in the fire protection on the alie with respect to whether or not by the government with respect to whether or not the there is this is a guideline or this is a policy and of those two cases one is miller  and i would would submit to the court that those two cases had so some items that i would consider guidelines because they didn't directly address this point the policy that was in the nine hundred ninety three  plan was it was very specific you have to provide firebreaks along the elite proudest and then the next thing as is that the deal we report and mr christianson who is the deal with fire protection engineer in his deposition said that the fire breaks had not been maintained and in fact had they been maintained his opinion mr christians of any was it wasn't that the about the the the comparison between o'toole and miller because i think the scope there hopefully i pronounce it correctly has been cited that i don't really think that relates here because these two decisions and i'm describing o'toole and miller miller's firefighting which i don't think applies here and all tool relates to the government as a landowner these are both decided way up to go there and thank you very much thank you very much appreciate the excellent debate of