[00:00:05] Speaker 04:
The next case for argument is 16-2-6-9 for Freeman versus United Today.

[00:01:05] Speaker 04:
whenever you are, Mr. Stevens.

[00:01:17] Speaker 05:
Thank you, may it please the court.

[00:01:19] Speaker 05:
I'm Richard Stevens representing the appellants in this case.

[00:01:23] Speaker 05:
I think this case really involves two interrelated questions.

[00:01:28] Speaker 05:
And the first is whether or not the Forest Service made a final decision or not for purposes of ripeness.

[00:01:34] Speaker 03:
Did RNR receive a notice of appealable decision?

[00:01:38] Speaker 05:
They did not receive a document that said that.

[00:01:41] Speaker 05:
Right.

[00:01:42] Speaker 03:
They're required.

[00:01:44] Speaker 03:
The forester was required to provide that.

[00:01:46] Speaker 05:
They received a written decision about their plan of operations.

[00:01:51] Speaker 05:
Asking for more information.

[00:01:54] Speaker 05:
That's correct.

[00:01:55] Speaker 05:
That's correct.

[00:01:56] Speaker 05:
And we treated that as an appealable decision because the regulations said,

[00:02:01] Speaker 05:
any written decision.

[00:02:03] Speaker 05:
It didn't say final.

[00:02:04] Speaker 05:
It didn't say anything.

[00:02:05] Speaker 05:
It said a written decision regarding a plan of operations.

[00:02:09] Speaker 05:
But I think whether or not we appealed that is not nearly as important as whether or not the Forest Service made a final decision.

[00:02:17] Speaker 05:
And we've cited the statement by the District Ranger who said in the appendix at page 248 that he could not approve the plan and urged

[00:02:31] Speaker 05:
Mr. Freeman to submit a new application for a plan of operations.

[00:02:36] Speaker 01:
Didn't he also suggest that some paperwork or some application would have to be made with the BLM?

[00:02:43] Speaker 01:
And did R&R ever do anything and reach out to the BLM?

[00:02:48] Speaker 05:
Yes.

[00:02:49] Speaker 05:
They notified R&R that paperwork had to be filed with the BLM.

[00:02:56] Speaker 05:
That was not done.

[00:02:57] Speaker 05:
But the problem is that is an easy solution.

[00:03:03] Speaker 05:
Why is that a problem?

[00:03:05] Speaker 03:
Pardon?

[00:03:06] Speaker 03:
Why is it a problem that that's an easy solution?

[00:03:09] Speaker 05:
That is not the problem.

[00:03:12] Speaker 05:
The real problem is that we also have to have a pilot plant proposal, which the Forest Service could not identify what that was.

[00:03:21] Speaker 05:
And we believe that it is, in fact... You know what a pilot plant is.

[00:03:26] Speaker 05:
It can be completely different.

[00:03:29] Speaker 05:
Some pilot plants last for six months, years.

[00:03:33] Speaker 05:
Some last for weeks.

[00:03:34] Speaker 05:
Some last for hours.

[00:03:36] Speaker 05:
Some do hundreds of thousands of tons of material.

[00:03:39] Speaker 05:
Some do much smaller.

[00:03:41] Speaker 03:
So you had a broad spectrum of possibilities.

[00:03:43] Speaker 05:
That's correct.

[00:03:45] Speaker 05:
We've asked them what they wanted.

[00:03:47] Speaker 05:
In this case, they couldn't identify what it was they wanted.

[00:03:51] Speaker 03:
Why should they hire a mining engineer

[00:03:55] Speaker 03:
to design your pilot plant so they know what the needs are to do a demonstration project.

[00:04:05] Speaker 03:
Don't they want to know what potential pollution there is, what the transportation problems are to the pilot plant?

[00:04:14] Speaker 03:
That kind of thing is going to show them that.

[00:04:17] Speaker 05:
Well, a pilot plant normally would not show them transportation kinds of things.

[00:04:21] Speaker 05:
It would just show how the material is smelted.

[00:04:24] Speaker 05:
and processed in the plant.

[00:04:28] Speaker 05:
But the point that we'd like to make is that R&R believes that this is not a precursor to actually developing these particular claims.

[00:04:39] Speaker 03:
When you're smelting, don't you need fuel?

[00:04:43] Speaker 05:
Absolutely.

[00:04:45] Speaker 03:
Where's the fuel come from?

[00:04:47] Speaker 03:
The proposal?

[00:04:48] Speaker 03:
You're not going to burn charcoal, are you?

[00:04:50] Speaker 03:
Pardon?

[00:04:50] Speaker 03:
You're not going to burn charcoal.

[00:04:52] Speaker 05:
Well, you're adding a wood product and creating carbon for the smelting process.

[00:05:00] Speaker 05:
Yes, there are various stages to this particular project.

[00:05:07] Speaker 05:
But our concern is that we were never allowed to question through the Court of Federal Claims to do discovery, have a fact-finding hearing on whether in this context

[00:05:20] Speaker 05:
The context of this particular case, whether a pilot plant proposal was reasonable, whether it has ever been required to the Forest Service, the Forest Service has never identified.

[00:05:31] Speaker 01:
I understand what you're saying.

[00:05:33] Speaker 01:
I understand that your client feels probably that that's a big impediment to the business.

[00:05:41] Speaker 01:
I understand that.

[00:05:42] Speaker 01:
But the question is whether there's a final decision.

[00:05:46] Speaker 01:
And as I understand it, there were two agencies that were supposed to be paperwork were supposed to be submitted, two plans were supposed to be submitted.

[00:05:54] Speaker 01:
And I just don't see that here.

[00:05:56] Speaker 01:
At minimum, I don't understand how you can possibly have a right case when the BLM paperwork wasn't even submitted.

[00:06:06] Speaker 01:
How can there be a taking when all the initial requests and plans weren't even provided to the agencies that needed to just make the decision?

[00:06:16] Speaker 05:
Well, so your honor, if the answer to the question is it's not right because papers were not submitted to BLM.

[00:06:24] Speaker 01:
Well, I mean, what are we supposed to, oh, it doesn't matter.

[00:06:27] Speaker 01:
There's certain paperwork that has to be provided and requests and different things that have been provided to the agency so they can make a decision, a final decision.

[00:06:35] Speaker 01:
And they weren't able to do that here because the new plan was not submitted and also nothing was submitted to BLM.

[00:06:47] Speaker 05:
Well, I guess the question is, should we be able to have the court look at the requirements requested by the agency besides just the affidavits submitted?

[00:07:03] Speaker 05:
Would we do discovery?

[00:07:04] Speaker 03:
What did you specifically ask the Court of Federal Claims to let you discover?

[00:07:11] Speaker 03:
What facts?

[00:07:14] Speaker 03:
We asked for discovery.

[00:07:16] Speaker 03:
Yeah.

[00:07:17] Speaker 03:
What specific facts did you tell the court you expected to be able to discover?

[00:07:21] Speaker 05:
We did not identify specific facts.

[00:07:24] Speaker 05:
We made a request for discovery.

[00:07:26] Speaker 05:
There was nothing on the other side saying you need to limit your request.

[00:07:31] Speaker 05:
I think the court does have jurisdiction to limit discovery at the stage of a motion to dismiss.

[00:07:38] Speaker 05:
But the question is, does the court have the authority

[00:07:42] Speaker 05:
to decide these facts on rightness without having any discovery or without an evidentiary hearing.

[00:07:51] Speaker 05:
And we have cited the cases from around the country in various circuits saying that when these facts are disputed, that there needs to be an opportunity for the plaintiff to prove it.

[00:08:05] Speaker 03:
You don't dispute that the government, the service asked for a pilot plan, right?

[00:08:11] Speaker 05:
No, we do not dispute that.

[00:08:13] Speaker 05:
What we dispute is whether that has a basis either in law or reason or fact.

[00:08:21] Speaker 05:
Yeah, you think it was some kind of pretext.

[00:08:23] Speaker 05:
Absolutely.

[00:08:24] Speaker 05:
We do.

[00:08:25] Speaker 05:
And I think that we should have been able to pursue that before the Court of Federal Claims.

[00:08:30] Speaker 03:
What did you tell the Court of Federal Claims was the basis for your thinking that was a pretext that you could discover with discovery?

[00:08:42] Speaker 05:
We did not identify certain discovery, either techniques or questions.

[00:08:51] Speaker 05:
But the one thing that we did make clear, and I think it was in our briefing and in the declaration of Mr. Freeman, is what is the factual basis?

[00:09:02] Speaker 05:
There is a statement by one of the Forest Service personnel, Mr.

[00:09:07] Speaker 05:
Mr.. Johnson saying I talked to experts, and that's what they suggested.

[00:09:11] Speaker 05:
We don't know who these people are We don't know what their level of expertise is We don't know again whether the Forest Service has ever made this kind of requirement of anyone of any size And I think that that is relevant to whether this is a pretext for your luck Yes, we could not find any examples of the Forest Service ever Requiring a pilot plant test for any kind of a project

[00:09:36] Speaker 05:
And so that is the further reason why we think this was, in fact, a pretext.

[00:09:44] Speaker 05:
But I think it is important that we should have been able to look beyond the surface of the standards.

[00:09:51] Speaker 03:
I'll ask your opposing counsel that question.

[00:09:56] Speaker 05:
That's fine.

[00:09:58] Speaker 05:
We have never had that asserted by the defense that, oh, yes, we normally do this, and here are the examples ever.

[00:10:08] Speaker 05:
The court, this court in the Nuance Communications case, I think made clear that when we're talking about motions to dismiss, the trial court decision should not be given any deference when there's been no evidentiary hearing.

[00:10:27] Speaker 05:
I think that this court in the Cedars-Sinai Medical Center case hinted that discovery was appropriate in a motion to dismiss because the court noted

[00:10:36] Speaker 05:
that motions to dismiss when there are challenges to the jurisdictional facts can be disproven or the facts can be proven with deposition testimony.

[00:10:49] Speaker 05:
Again, this we were not allowed to do.

[00:10:55] Speaker 05:
We would contend that first there was a final decision in that the decision was no pilot plant proposal, no mining.

[00:11:05] Speaker 05:
So we think that that is fine.

[00:11:08] Speaker 05:
But even aside from that, we contend that the opportunity to do discovery is critical.

[00:11:18] Speaker 03:
Did your client formally refuse to build the pilot plan?

[00:11:25] Speaker 05:
There isn't a proposal to build a pilot plan.

[00:11:28] Speaker 05:
There's nothing to refuse.

[00:11:30] Speaker 03:
So the service didn't say you should build a pilot?

[00:11:34] Speaker 05:
You should, but we have no idea what it is.

[00:11:36] Speaker 05:
And when we asked what it is, what do you want, get some ideas, we can't tell you.

[00:11:41] Speaker 05:
We can't tell you anything about how big it should be, how long it should last.

[00:11:45] Speaker 02:
So did your client say, so I'm not going to build it?

[00:11:48] Speaker 05:
It says, I don't know what to build.

[00:11:50] Speaker 05:
And it is not part of my proposal.

[00:11:53] Speaker 01:
Did your client respond to the other requests made in the Forest Service July 24, 2012 letter, like,

[00:12:00] Speaker 01:
there were requests about maybe roads and different, there were other things that were requested besides a pilot plant, right?

[00:12:10] Speaker 05:
Yes.

[00:12:11] Speaker 05:
And again, those things were not the hurdle.

[00:12:15] Speaker 05:
So those things, Mr. Freeman.

[00:12:17] Speaker 01:
So your client did not respond?

[00:12:19] Speaker 05:
No.

[00:12:20] Speaker 05:
We were already in court.

[00:12:22] Speaker 03:
Mr. Freeman is a mining engineer, educated at the Colorado School of Mines.

[00:12:26] Speaker 03:
That's correct.

[00:12:27] Speaker 03:
He knows what a pilot plant is.

[00:12:30] Speaker 05:
Yes, he does.

[00:12:31] Speaker 05:
And the problem is that there's a wide variety of what a pilot plant can be.

[00:12:39] Speaker 05:
How big it is, whether it's on-site, whether it's off-site, whether pilot plants operate in other countries.

[00:12:46] Speaker 02:
He could have gone ahead and done something or refused one or the other.

[00:12:51] Speaker 02:
Yes.

[00:12:53] Speaker 05:
You're right.

[00:12:54] Speaker 05:
He could have done something.

[00:12:55] Speaker 05:
You could have bet that would have put him on what we believe to be an endless loop considering the history of the handling of the mining claims.

[00:13:04] Speaker 04:
Can I just go back to Judge Stull's question?

[00:13:06] Speaker 04:
Was your answer to her question, what I heard was the reason your client didn't respond, you said, well, we were already in court?

[00:13:14] Speaker 04:
Is that what I heard?

[00:13:16] Speaker 05:
No.

[00:13:16] Speaker 05:
I'm saying we were already in court.

[00:13:20] Speaker 05:
But is that a

[00:13:22] Speaker 04:
The answer, a responsive answer to why you didn't respond to the other things the Forest Service asked you for in the requesting letter?

[00:13:30] Speaker 05:
The answer is the Forest Service was requiring something that we couldn't do.

[00:13:35] Speaker 05:
And so that was the problem that we needed the court.

[00:13:38] Speaker 04:
That's the power plant.

[00:13:40] Speaker 04:
But what about the other stuff that I understood Judge Stoll's question to be with regard to the other matters, other questions that the Forest Service was asking about?

[00:13:49] Speaker 05:
Like the water source.

[00:13:51] Speaker 05:
That's right.

[00:13:51] Speaker 05:
And we had information, we believe we had information in there.

[00:13:58] Speaker 05:
We were also concerned.

[00:13:59] Speaker 01:
I don't understand.

[00:14:00] Speaker 01:
The question was, did you respond and answer those questions?

[00:14:05] Speaker 01:
I think you said no.

[00:14:06] Speaker 01:
And then the answer is why not?

[00:14:08] Speaker 01:
And the question is why not?

[00:14:11] Speaker 01:
Because we had a hurdle that we couldn't keep.

[00:14:15] Speaker 05:
And we had a hurdle that we couldn't meet, which is basically the pilot plant.

[00:14:21] Speaker 03:
If we had provided all this information... So you just blew off everything else.

[00:14:24] Speaker 03:
Pardon?

[00:14:24] Speaker 03:
So you just blew off everything else.

[00:14:26] Speaker 05:
If we can get the pilot plant issue resolved, we can easily solve the other problems.

[00:14:32] Speaker 04:
Thank you.

[00:14:33] Speaker 04:
Why don't we retain the rest of your rebuttal time and we'll hear from the government.

[00:14:36] Speaker 04:
Thank you.

[00:15:05] Speaker 06:
May it please the court, Avi Kupfer for the United States.

[00:15:08] Speaker 03:
Mr. Kupfer, has the United States ever required a pilot plant before?

[00:15:13] Speaker 06:
Although I'm not prepared with specific examples, I have authority from the Bureau of Land Management that a pilot plant is a fairly common requirement in terms of proof of concept when we're talking about scaling from a bench test to full production.

[00:15:30] Speaker 06:
And it's part of the normal back and forth.

[00:15:34] Speaker 06:
between regulators and an operator after an initial application is submitted.

[00:15:40] Speaker 06:
And the normal course operator will work with the regulator to answer some of the questions that the regulator believes necessary to be answered under its regulations.

[00:15:50] Speaker 06:
In this case, the Forest Service is charged with minimizing adverse environmental impacts to National Forest Service resources in approving any plan.

[00:16:02] Speaker 06:
as well as doing NEPA review.

[00:16:03] Speaker 06:
And it just didn't have the information it needed to continue analyzing this plan to do those requirements.

[00:16:09] Speaker 04:
What I don't understand is that he came back and he says to you, maybe I'm reading the record wrong, that could you explain what specifications of the pilot plan would satisfy the service?

[00:16:23] Speaker 04:
And your answer to him was essentially, that's your problem, not ours.

[00:16:28] Speaker 04:
Why is that kind of not an unusual, unhelpful

[00:16:32] Speaker 06:
response.

[00:16:33] Speaker 06:
So two answers to your question, Your Honor.

[00:16:35] Speaker 06:
First, I believe a point that Judge Wallach made is that mining rights are self-initiated, and it's the responsibility of the operator to come forward with an application that the Forest Service believes satisfies the regulatory requirements.

[00:16:53] Speaker 06:
And I think the second response to your question is that it's not exactly how

[00:16:58] Speaker 06:
The record reads, in this particular case, the Forest Service sent an initial letter to Mr. Freeman detailing several deficiencies in the plan, not just the pilot plant requirement, but the lack of information about the source of water for the processing facility.

[00:17:14] Speaker 06:
And there was no information in the proposal on whether Mr. Freeman had sought approval from BLM to construct a processing facility on public lands, as the plan proposed.

[00:17:26] Speaker 06:
Then, less than two months later,

[00:17:28] Speaker 06:
The district ranger and the area mining geologists who are the primary regulators responsible for analyzing this plan met with Mr. Freeman to answer questions and to provide clarification to any questions that Mr. Freeman had.

[00:17:45] Speaker 06:
And according to their declarations, Mr. Freeman said during that meeting that he didn't believe a pilot plant was necessary because he had already proven to himself that this process works.

[00:17:59] Speaker 06:
After that, when Mr. Freeman attempted to appeal that letter requesting additional information about his plan, the forest supervisor and the regional forester both encouraged Mr. Freeman to continue communicating with the district ranger to answer any questions he had about what was required in that pilot plant.

[00:18:20] Speaker 06:
I would add that in the area mining geologist memo attached to the district ranger's letter, there were citations to

[00:18:29] Speaker 06:
mining handbooks, two different mining handbooks explaining the need for a pilot plant in a complex 30-year mining proposal like this, citations to the Forest Service handbook explaining what needed to be shown during the development stage of a processing facility in order to scale to operations.

[00:18:51] Speaker 06:
So there was plenty of information at Mr. Freeman's disposal about what the Forest Service

[00:18:56] Speaker 06:
was looking at here.

[00:18:58] Speaker 06:
But I think that the... Where's that in the record?

[00:19:01] Speaker 06:
I want to take a look at that.

[00:19:03] Speaker 06:
That would be... So the initial letter is it's... The attachment is what?

[00:19:11] Speaker 03:
The geologist attachment?

[00:19:12] Speaker 06:
It's in Appendix 291.

[00:19:13] Speaker 06:
291?

[00:19:14] Speaker 06:
That's correct.

[00:19:16] Speaker 06:
Thank you.

[00:19:17] Speaker 06:
That's the initial memo, and then the second memo is sent in 2012.

[00:19:25] Speaker 06:
I'm sorry, in 2013 is it Appendix 310?

[00:19:27] Speaker 06:
310.

[00:19:29] Speaker 06:
So 291 and 310.

[00:19:30] Speaker 03:
Thank you.

[00:19:34] Speaker 06:
Your Honor, the central question here is whether the Forest Service has reached a final and authoritative decision on the extent to which Mr. Freeman can develop his mining claims, or if there's further administrative process available to Mr. Freeman that will clarify

[00:19:51] Speaker 06:
the extent to which Forest Service regulations restrict, if at all, his ability to develop those claims.

[00:19:58] Speaker 06:
And this Court's cases consistently hold that a regulatory takings claim is not right when there's a process available to an operator that the operator does not engage in.

[00:20:14] Speaker 06:
As the Court of Federal Claims found, Mr. Freeman would like this Court

[00:20:20] Speaker 06:
to engage in a full-throated analysis of the wisdom of the pilot plant requirement.

[00:20:29] Speaker 06:
But this isn't an APA arbitrary and capricious challenge.

[00:20:33] Speaker 06:
Mr. Freeman is well within his right to bring such a challenge after the Forest Service has reached a final decision

[00:20:39] Speaker 06:
on the extent to which Mr. Freeman can develop his mineral rights.

[00:20:44] Speaker 06:
In fact, he brought in APA arbitrary and capricious challenge on his original claims after BLM determined that he had not made a valuable mineral discovery.

[00:20:54] Speaker 06:
At this stage, the only question is whether there is an administrative process available to the claimant that they can participate in to obtain a more definite statement on the economic impact of the regulations.

[00:21:10] Speaker 06:
The government understands that Mr. Freeman is frustrated with this process and does not believe that some of the things that the agency, I'm sorry, that some of the things that the Forest Service would like to see in a plan are necessary, that he has, as I believe he said, proved it to himself.

[00:21:29] Speaker 06:
But this court gives wide latitude in agencies in determining what additional information is necessary under its regulations in order to continue processing

[00:21:39] Speaker 06:
a mining plan.

[00:21:41] Speaker 06:
And as stated earlier, there are several regulations here that implicate this bare bones proposal where the Forest Service, for example, in the 2013 letter, the Forest Service asked for more information on exactly how the proposed stream crossings would work.

[00:22:00] Speaker 06:
This is just one example where without having a full understanding

[00:22:06] Speaker 06:
from Mr. Freeman of how those stream crossings would work, it would be impossible for the Forest Service to analyze the impact on the banks, on the water quality.

[00:22:18] Speaker 06:
These are all things it would need to do before approving this plan under NEPA.

[00:22:22] Speaker 06:
And without that information, the Forest Service simply can't move forward in analyzing this proposal.

[00:22:32] Speaker 06:
The Court of Federal Claims will not be able to adjudicate

[00:22:35] Speaker 06:
R&R's taking claim until Mr. Freeman gives the Forest Service basic information it needs to continue processing his mining application, like proof from the Bureau of Land Management that Freeman may construct an ore processing facility on public lands.

[00:22:54] Speaker 06:
Until then, the type and intensity of development permitted under the Forest Service mining regulations, and therefore the economic impact

[00:23:05] Speaker 06:
of those regulations on these mining claims will remain uncertain.

[00:23:11] Speaker 06:
The United States, therefore, respectfully requests that this panel affirm the decision of the Court of Federal Claims.

[00:23:18] Speaker 06:
And if there are no further questions.

[00:23:20] Speaker 06:
Thank you.

[00:23:33] Speaker 05:
Thank you, Your Honor.

[00:23:35] Speaker 05:
The argument by opposing counsel about pilot plants being a common proof of concept requirement, the problem is we don't have any examples.

[00:23:49] Speaker 05:
We've never had any examples.

[00:23:50] Speaker 05:
In the years of litigation, we've never had examples.

[00:23:53] Speaker 03:
What did you do to look?

[00:23:56] Speaker 05:
We made inquiries.

[00:23:58] Speaker 02:
Yes.

[00:23:59] Speaker 05:
And could not find

[00:24:01] Speaker 05:
including talking to former forest service personnel asking, has this ever been required?

[00:24:08] Speaker 05:
And could not find it.

[00:24:10] Speaker 05:
And that's the kind of evidence that I think we ought to be able to ask the government under oath in discovery.

[00:24:20] Speaker 01:
Did you look at the references like the forest service handbook?

[00:24:26] Speaker 01:
that government council referenced and might be mentioned, page appendix 293?

[00:24:32] Speaker 05:
Yes, and if you look at, for instance, that Forest Service Handbook, there is nothing in there about pilot plans.

[00:24:42] Speaker 01:
What about the other?

[00:24:43] Speaker 01:
I think he mentioned there are two resources.

[00:24:46] Speaker 05:
Yes, and there is not a reference to pilot plans.

[00:24:49] Speaker 05:
That's the problem.

[00:24:50] Speaker 05:
That's why we believe this is being applied to

[00:24:54] Speaker 05:
the Freeman claims or the RNR claims uniquely.

[00:24:59] Speaker 05:
Really?

[00:25:00] Speaker 03:
So your client proposes to dig a tailings pond, right?

[00:25:04] Speaker 03:
Pardon?

[00:25:05] Speaker 03:
Your client proposes to dig a tailings pond.

[00:25:09] Speaker 03:
Isn't that correct?

[00:25:10] Speaker 03:
Yes.

[00:25:11] Speaker 03:
And what's he going to do with that rock, the aggregate that's extracted?

[00:25:23] Speaker 05:
If you're talking about the slag, if you're talking about slag, that slag, his proposal was to... No, I'm not.

[00:25:29] Speaker 03:
I'm talking about when you dig a tailings pond, you extract rock in order to do that.

[00:25:35] Speaker 03:
What's he going to do with it?

[00:25:38] Speaker 05:
I don't have it in front of me, Your Honor.

[00:25:41] Speaker 03:
Nor does the government.

[00:25:42] Speaker 03:
That's one of the things they reference.

[00:25:45] Speaker 05:
Absolutely.

[00:25:46] Speaker 05:
If this was analyzed previously,

[00:25:50] Speaker 05:
was analyzed previously extensively in regard to the Freeman claims.

[00:25:55] Speaker 05:
And he made reference to the fact that these are basically following the same Freeman when they were analyzed both in terms of analysis by the BLM and analysis by the Forest Service during an environmental impact statement.

[00:26:13] Speaker 05:
These were thoroughly analyzed.

[00:26:17] Speaker 05:
Back to Judge Stoll's question, I would encourage the court to look at Appendix 330, which talks about what you do for metallurgical issues in mining.

[00:26:28] Speaker 05:
And it references you do bulk samples, which Mr. Freeman has done.

[00:26:35] Speaker 05:
It doesn't talk.

[00:26:36] Speaker 05:
There's nothing in there about pilot plants.

[00:26:39] Speaker 05:
And that is our problem, is that the Forest Service, we believe,

[00:26:46] Speaker 05:
came up with an excuse to be able to not process it.

[00:26:51] Speaker 03:
That's about the drilling of shafts and the determination of the ore body.

[00:27:00] Speaker 03:
Saving bulk samples from shafts or drills from metallurgical testing and designing the mill?

[00:27:04] Speaker 05:
Right, for metallurgical testing.

[00:27:06] Speaker 05:
That's the only reference to metallurgical testing.

[00:27:09] Speaker 05:
And that's what the pilot plan is supposedly about, metallurgical testing.

[00:27:13] Speaker 05:
That's also the manual gives us.

[00:27:15] Speaker 05:
And so that is why our position is that we should have been able to discover, have a hearing on this issue to determine whether or not we have a final decision.

[00:27:34] Speaker 05:
And again, it appears to be a final decision, no mining without a pilot plant.

[00:27:40] Speaker 05:
We can't tell you what that is.

[00:27:42] Speaker 05:
It's not part of your proposal, but we're going to require it anyway, and we are in violation of our own rules for requiring that.

[00:27:52] Speaker 05:
Again, as we spelled out in the briefing, they had 30 days to do that.

[00:27:56] Speaker 05:
They didn't do anything for 14 months.