gate that i want to talk about is how these motions for digital notice that have been filed but the eleventh hour by both sides i guess that's part of the background so we obviously haven't ruled on them but there's  it appears that neither of you are objecting to the others motion but which is one that makes it easy for the judge and say well it's not objected so we'll just fly to the end but i want to take it a step further while some haven't made it appear to be subject to  this it's really not clear well or might be clear to me or it's not clear to me exactly why both of you want to do this and whether and so maybe i need to hear about that because it i have a hand that you're trying to do by interaction what you can't do by direction and reopen get have the court we saw some factual and then have a new hearing on certain issues since that's my concern on the judicial n a moment i have some concerns with that but let me let me say with respect to our three documents before you use it in this case like the district court it's a noble standard of review it seemed that there was an obligation on me to update you with significant developments what is happening in the district court what position is being taken by the united states what is happening in the state court i did it with the minimum usually noticeable judicially noticeable document so i could and my purpose was simply to update the court so it could be apprised because used to boast to make this decision on the basis of practical considerations ok but if we need we're making it's a no go determination  assumes to be true and that is a great record as far as we're concerned but we felt it was fair to the court to let you know what's going on and what positions are be being taken because we feel that this intervention case raises huge due process issues do you want me to address the other motion for to be concerned about the tenor in which those documents are put in front of the court with that let me proceed with my argument ok thank you thank you  raises serious due process concerns on the one hand the united states says till her words interest in its judgment lean is protected no problem on the other hand the united states wants and apparently expects the district court to grant large who it in the case below against allison and we don't know the amount of those penalties that hasn't happened yet and then to very substantial and the assets that are available to satisfy your debt may be for ever put out of your reach depending on what happens in the receivership proceedings or whether there's a sale but what you really asking for i think is a determination of priority of claims and the proceeding that's ongoing in the district court is an e p a enforcement proceeding to determine whether or not there been violations of the clean water act and how much to impose on the violator and four years later you want to come in and try and improve your position to collect your ability to collect on the judgment now have i completely misunderstood what's going on here is is that what we're facing well are twenty eight j letter point out this court week will in district courts in this circuit frequently allow people to come in at the remedies phase and we're willing to take the record as it exists we really don't have any interest in the environmental issues we have an interest as rule twenty four says in the property that is the subject of this action and we came in and as soon as it became clear that our interest was threatened now that you are correct your honor we got our  document on the books for a long time so why didn't that just trigger it at that point my colleague mr last did indeed have conversations repeatedly with mr rockman of the environmental protection agency never in the four years that we were talking was there any suggestion that the united states was objecting to our collecting our judgment or claiming any priority over it was not until may ninth two thousand and two in a telephone conversation in which mr last and mr rockman and this jonas who wrote the brief for the united states in this case i learned from mr jonas that the united states was thinking of a bringing in the all you have to look at the statute and see that there are civil and criminal penalties that the government we have no problem with the government requesting penalties your honor what we have a problem with this priority we thought that the united states was acquiescing in our having priority they were essentially going to let collect our judgment and then may not three weeks before we file different from a judgment creditor who holds well let's talk about the federal priority statute that's being asserted here which is thirty one u s c section thirty seven thirteen it was enacted in seven hundred ninety seven at that time there was no provision for five twenty three us five seventeen at page five twenty six the united supreme court nine states supreme court raised the question which they have raised before and reserve as to whether that statute applies to secure gives us priority because we're first in time unless somehow that is overruled or preempted by the federal statute there's a lot of doubt about it that and in fact we never knew that the united states was squeeze blood out of the debt or that you're going to have a problem as to whether uncle gets paid before anybody else gets well your honor there was no order pointing a receiver we didn't move to the remedy stage the law until april ninth two thousand  two four years in that case while we had our judgment and we're talking with the government was about the environmental laws i don't even know if we had a right to intervene at that juncture we didn't care about the environmental laws in the meantime we were spending hundreds of thousands of dollars which will never recover to defeat alice now and enforce our judgment and we did so successfully in eight consecutive orders in six different tribunals from the california supreme court  california p u c in two different superior courts we were busy and silverware does not have limitless funds but all of the staten island april night the district court moving to the remedy phase in joined any judgment creditor from forcing their judgment so we called up the united states because that is the clean water act the government has an overriding health and safety concern to make sure that the customers of the water district are supplied with clean water that's safe to drink our interests consonant with the government on the issue of the sale of the assets because we think we didn't deserve to collect our judgment and this these water companies should go to law abiding for action well there's nothing good question i've got about a five part answer but there's nothing in the safe drinking water act which is the act we're talking about here that limits the ability of parties to in joint actually we learned sometimes after because we did not get these pleadings immediately we're not parties may ninth mr jonas informs us that the united states is now for the first time saying they're going to assert priority and we ha priority we would need to be in the federal action sets may not june fifth we file that is a very very quick considering that all the research we had to do on the federal priority statute and everything else in your rights are threatened and we did not we reasonably did not think our rights were threatened until april and may of two thousand and two and we all we asked for was intervention in a remedy things of this proceeding we don't care about what happened before and in fact if this court were to reverse and let us get in the case under the law of this circuit that intervention is prospect of only so any orders that have occurred in the past they we can't touch them but what we need absolutely is the opportunity to argue two issues and have a right of appeal if the judge gets it wrong and those two issues are priority and penalties we want to argue that we have priority and number two we need to be able to argue to protect our interest that penalties should be low because otherwise we may not be able to collect our judgment that's true of every judgment creditor sold by a receiver potentially to give the united states a million or our many penalties are awarded that property is in some sense our property we have an interest in it and we're not being allowed to address the cour where things are very uncertain for us because we are not allowed to speak to the court let me explain why the united states has to basically there are two reasons why we're not hurt here and they're wrong on both the first is that we are allowed based on an order after we were denied intervention to go to the superior court and to attempt to enforce our judgment against the alko assets which are some of the assets in which we have an interest we also have an interest in the  that are in the federal receivership and there are four reasons why that is not adequate the first is there may not be enough money in the federal state receivership to satisfy or judgment number two the united states may come into the state proceeding having gotten a favorable rule on priority without us being able to address it and tell the superior court judge that they have priority and they get the state that we have no right to speak and the judge has admonish us not to speak we're not protected by that order in any way you can't you say no prejudice to silverwood and then do what is being done here we have a right and we're not going to disrupt the federal case to we get in we want to argue priority we want to argue why not why aren't you because it's not we're taking the record as it is all we're asking is the opportunity to put our arguments forth and to have a right of there is no arguing you want to argue panel i mean you want to be standing next to the prosecutor told him with a million dollars make it a nominal amount make it five dollars under the federal you correct your honor under the federal rule we have an interest have the judgment if that's true of everybody who's right or it may or may not be but let me say your honor that there's two and a half million dollars left remaining unsatisfied in this judgment what if there's not sure there is there is no other arguing that you had a right to intervene in the tax court of the district court to argue that whatever the taxes are that are going to be imposed well your taxpayer should be low because it would defeat your ability to collect on your you're out of that that's a different case this this in the churchill county enforced conservation council cases that are cited in the twenty eight day letter that you can come in in the remedy phase if your interest is not environmental and ours is not we never said it was but it's contractual and essentially we have the highest form of contract available a judgment only we are entitled to enforce it and we're not there's a serious risk that we're not going to be able to enforce it unless we're allowed  notice probably about the one that they filed what they were thinking and i can certainly tell the court that you know we did not oppose oppose those simply on the grounds that we didn't see there being anything to sort of you know hide from hide from the court liability is over and even the project conveyance claim has now been tried the other aspect that's looked at is whether or not there is would be prejudice to the parties by the intervention and we believe that that is also you know also the case here motions on the issues that it you know mention today or others that it hasn't if it's file appeals it could take any other action that a party could take and then the final thing that this court looks at which the district court mentioned as well is that we would had offered  no good reason for the delay in its motion and for filing that motion only in june two thousand and two and the complaint the complaint was filed the first complaint in one thousand nine hundred seven there were several anetta complaints i would call the court's attention to the involved it's over with so they didn't have any notice of any of that because it was in the party so is your position that it somehow had an obligation to be periodically checking the court docket to see what was happening and i think in this particular if the facts were sort of different it would be appropriate for the court to look at things that are stacked in the public record and that they should have been aware of so are you saying that there were ongoing discussions with silverwood lawyers without without court approval upon motion with notice to the receiver and the attorney general and they say that they have tried to appear the government does not release them that the government has not received that any any motion  practical matter can be taken here without intervention through the state court receivership and also through the federal court receivership and the district court again not not only have they not made a motion the district court they haven't made a claim to the receiver which is which is what other creditors you know have water violation and the government is not going to priority in collecting that penalty if the result would be that silverwood isn't left with and to satisfy the balance due on his judgment and if the government's willing to enter into that kind of an agreement then let's go to a mediator and get this thing resolved and we'll be done with this case and then i say i gather that that someone wants more certainty then you know then and then i think they'll be able to get at this you know at this point but that's what you know we had offered up in our you know in our brief and i provided practical information for the court because there is you know even if you found a lot on spam site but it sounds like you're making arguments without the authority to commit and so that's not to somehow influence us in terms of just saying well yeah they really do have a remedy because we'd be willing to do this but you're willing to do that i think what judge thomas payne is going to mediation and bring those matters to the court's attention because they not only demonstrate that one of the major issues has been mooted by subsequent of that's the major issues that the pilot relied on in the district court but they attached to it the motion that they have subsequently filed in the state court and had granted that they were precluded unless they intervene from filing that motion in the state cour that we have no rights so they'll just divide up our assets and we take a very different view of that and that will be better presented in the having appeal in on the merits but i didn't want to if i this record apart from the judicial notice they took place before the appeal was filed and it goes to the fourth prong i think i've dealt with a third prong or maybe i've got it backwards but  unless the money judgment is satisfied or the judgment mean is terminated or released the judgment mean continues for four or five years from again filing the legislative committee i'm sorry i didn't get my full argument howard in starting because the court was very active and there are some very important points i need to cover first of all the responding to mr pearman because i just want to get rid of that we are not given the ability to protect our interest by going to alcohol as i said or for reasons because there may not be enough money down there because the united states can come in and claim priority when we've been denied the right to argue that because the district court as in the judicially notice motions indicated make the whole of the alko assets back into the federal case in which we have no opportunity to participate and because we also have rights secur interests in the property that is in the federal receivership and we're entitled to enforce as to those and with respect to the timeliness issue april ninth in may ninth of two thousand and two we were  joined and told priority was a we were shocked we were threatened at that point we very quickly intervene this was an abuse of discretion it were only trying to get into the remedy  i would like to make one other point to the court because the court seems to be looking for a way out of this and maybe even the united states does and it's just a thought but there may be a way that the judgment could be a firmed while preserving solar which rights and that would be actually there's two ways this out here the court will do what it does and that is that the court consistent with the prayer the complaint an intervention could reach the priority issue and determine that under the circumstances that we have priority then we would need to go in but the second way you could affirm would be to observation that you could rely on the conversations between the united states and silverwood over the years we were led to believe by lawyers and that's in our complaint intervention first time we heard about priority was in may of two thousand and two we were led to believe that priority would not be asserted we were not even aware of the federal priority statute but then this is even our page one hundred four the united states said it was going to brief the priority issue in opposition to the most for intervention page one eighty five of the excerpts of record judge fogel said i'd like to see that briefing they may or may not have priority and then the united states did not