facility the underground storage facility that is at issue in the litigation we did not discover first of all i don't believe let's go on lewis was in this case when it was in the district court they came into the case in the court of appeal there also a mistake or perceiving that is going forward that relates to these issues and we had thought that the issues of conflict and disqualification would be resolved in that state court proceeding there was a hearing scheduled in on early october that another hearing scheduled and then it was removed and then we're here and so when they did get resolved we raise the issue in this court as well my client will not waive the conflict and consequently six to disqualify the firm of list going lewis and mr robinson who's a member of that firm from representing natal in this matter against its former client it's a substantially the same it's the same issues it's the same facility it's issues concerning what that facility is and what rights that facility has and there is also the issue concerning confidentiality mr robinson's indicated they don't have files that they say contain confidential information but that's not the issue under the rule  way the rule works is is that if it is reasonable to assume that confidential communications were made in connection with the representation then those confidential communications give rise to the little letter from we have on the of council attorney gina feet what what's going on with that well we have provided since that motion was filed here we've provided a redacted copy of that letter to mr robinson and we have a number of pieces of communication providing instruction as a lawyer would do in attorney client privilege communications from let's go and lois that we consider to be the one to produce to the people against us whether they have them in their files or not is really not the question we were just trying to demonstrate that those types of communications were ad a right major question was raised  excuse me i'm sorry i'm right now just going to say so to the extent that it's there me it will be part of our deliberations about the whole matter and to the extent you want to speak more about it you can but otherwise assuming  got past that you know you can spend the balance of your time on the merits and when mr robinson comes up will ask him similarly about the about the motion and so forth and you'll have the time to rebut and at the end of it all  as good understanding as we can as to whether a will of the motion should be granted be seen if it is what difference it may or may not make on amir's determination well made police a court on the merits and  just as matter of introduction i'm larry and i'm here on behalf of appellant to enable mississippi river transmission it's an appeal from the united states district court for the western district of louisiana the honorable judge elizabeth foote presiding and it's an appeal from her order granting a twelve b one motion and dismissing enables lawsuit for lack of subject matter jurisdiction so that's the issue was that an error than an error the standard of review is dunno it is our position that the issue is one there is an issue of federal question jurisdiction that there is federal question jurisdiction under twenty eight u s c thirteen thirty one there is a substantial issue of federal law arising out of the natural gas act and it's what do you do with the with the learjet opinion of last year from the supreme court it seems to me to say that regulation of the production gathering of natural gas is left to the states is not a matter of federal law or regulation and production of the initial production of natural gas is production and gathering reduction gathering there's no question if you look at the one a case of one of versus learjet you'll see that they divide the natural gas industry into three segments segments are first the production of the gas and they talk about historically going in drilling the wells no storage facilities in the storage gas drilling wells producing gas and then delivering that gas to interstate commerce and then you have interstate pipelines that then transport the gas and then they take it to the customers and then the customers are normally trans comp local users who then distribute to residences and businesses where in the middle we're in the middle of that in this case does not infringe in any way upon the state's regulation let me just go straight to the heart of the i think you've got to the heart of it is that in this particular matter you have a case that the district court relied upon almost exclusively and that the other side relies upon almost exclusively and it's a ninth circuit  basin that's that's really where the case comes down to is that and we don't think that decisions right and it's an interesting decision so let me just talk about it what's wrong with the decision is this they got it right on the can't condemnation issue because in that case they witnessed in the seeking a condemnation of some wells the defendants in the case of drill some wells within the geographic confines of their storage facility and it was the allegation of williston that the wells were producing their storage gas and then they filed a suit for conversion damages and they of the storage facility and they lost williston lost that argument it was an extension of the storage facility those wells were and for them to contend condemned for them to take those wells over and use those wells for purposes of their storage facility they would have to get a certificate of public convenience and necessity from the fir well they'd argue that it wasn't an extension so to be hard to argue it was when it was in the hands of the defendants the second part of the decision in winston was this  court said that the production basically they believe so and show no part of the natural gas and that natural gas said that applies to the conduct of the defendants and the second part of his and the production exception the one you mention appliance so the natural gas act and the plot of what they were doing we disagree we disagree the production exception applies to initial production it applies to native gas that's in the ground the permits and the orders that were issued by the department of conservation to  gusman in this case are permits that where they were trying to conserve and protect the natural resources of the state of louisiana the gas that they're producing as we allege is not the gas and resource of the state of louisiana it's gas that's been produced in missouri and arkansas and texas and other places and has been put in storage it is gas that is declared under the natural gas as being of gas to which enable is entirely to possession and control of that gas until it is after delivery into its system until it that is enabled delivers it to their customers now that's the gas they're producing not native gay's remarkably no one argues that in we'll just and then the other point is as they say in williston where you don't point out a violation of the natural gas act that was occurred on the part of the defendants well they couldn't point out the because they took the other side of the issue wrongfully that it was an expose wells were an extension of the facility they are in the extension of the facility or extension of an existing facility art of agents construction of the storage facility you have to have a certificate of public convenience and assess the from the first n response to this argument by saying well we're not a natural gas company i got that but that doesn't mean you're caught and therefore they're not subject to further regulation they're calm dud is subject to further regulation the santillan well as an extension of our storage facility it's producing our storage gas if we did it in a bill did it we'd need a certificate the fact that they didn't get a certificate means they are engaged in an authorised conduct and there we get back to the state claim for conversion they have a stake claim for conversion you have to show they weren't authorized to do what they would deliver you have to show that and that's the federal law that's at the heart of this lawsuit is that they weren't authorized under the natural gas act to drill a well and produce they call it production i call it withdrawal they weren't authorized to withdraw a storage gas and salad it's that simple it may not be that simple if you're arguing for production exceptions and you've got willesden cases and all that but it's an issue the federal courts should address you don't want this decided on a state by state basis the fir regulating enable as it does every other natural gas company is regulating their rents the rates that they charge that they're allowed to charge a based upon the costs they incur the losses they sustain go into that cost basis it's a burden on interstate commerce and let me just say hat how far out the position ian's nagel's position is i've got a permit to drill the well i've got a unit order from the state that says i'm draining the unit that's not the facts in this case because you have to assume the facts in the case of what we allege and what we allege is they drilled a well and they're producing the storage gas that's migrating to that well from our facility it's not what the state said and the problem with the position of nato that makes it so extreme is that  come into their well sun they knew those things and they drilled the well and they produced it let's say that were the case it wouldn't make a difference to the nettles argument because it's a production except and we're not a natural gas company so if you can figure it out it's a great deal for you because someone is going to keep injecting storage gas into a facility that's coming over to your well that's depleted and you're going to produce it and s been here is one also lewis was one of the founding partners of our far left lewis been dead since november of nineteen seventy four he represented the predecessor  what mr lewis did was to get a unit order from the department conservation in baton rouge to set up the parameters in the size and the boundaries of the subject gas storage unit there's another order conflict goes we weren't even in the case when this appeal law so the only thing we've dealt with on this appeal is the subject matter jurisdiction issue and i don't see the conflict there because mr lewis never represented in the dalles or a neighbor's predecessor in litigation so moreover your lawyers we went into the state court claim we accepted only that this was a collateral with the l and in state court and third of their judicial district in ruston was a collateral attack on the can of order of the commissioner conservation because if the first thing they should have done was go in before the commissioner which they have now done there they they have gone before the commissioner and there they are along subsequent to the following of the two lawsuits that to ask that the gas be tested predecessor of the appellate what what is relevant now is they have got to go back to the commissioner of conservation to revise these units but if they get there is migration migrate if it goes back the only issue is going to be how much gas in the value whether those claims have perscribe because it was testimony at the at the most recent conservation hearing a couple months ago that they have known about the that the nature of the marriage dispute was shaky argues i think is not dispositive of confident his argument as i get it in the papers is that you know there's an inherent conflict because of the predecessor in this court with the name calling whatever its earlier name and maybe sort of purge any conflict that might have been here i think in essence so my point is so you don't get too bogged down in the deeper areas of the drilling but just on his wrote wrote the letter but this goes back to the it to sixty eight judge if i could if i could refer the court to document number zero zero five one three seven three two four three eight the the supreme court said as a result the court is here on that quote if the attorney is to be disqualified there must also be an indication that the confidential information obtained by the former attorney is were withdrawing that new counsel in a conservation matter but because we would have in that case had to take a position opposite to what austin had taken as to the question of a close  of open reservoir that's not going to be an issue because if this if it's done properly under the law and the got a case and the which i was involved in the supreme court case they have got to go to the commissioner then of code articles including twenty three fifteen so it requires a finding of fault in here judge foote found that there was there was there was no violation there's no private cause of action for violation of the natural gas act but it's reservoir well apparently it wasn't a close reza for it because i don't think there's anything question about it as between the two companies or in a shameless step there is migration going on not from which already answered it but tell me again he is arguing that somebody is getting an extension of this storage unit of the storage that commissioner as they should have done in the first place to modify it to measure the gas and one would assume that the commissioner has soldiers diction of under the or under thirty c issues that were approached by the with the commissioner lewis years ago are many of the same issues that are involved in this matter you'll see him allege that the commissioner found that the facility a closed a reservoir that's going to be an issue what that means austin lewis did it jima feet helping and they did it on behalf of my client and now they're representing someone else and using that and they argue that in their very in this court that's at page two of their brief so we believe that a conflict does exist and they should be disqualified client says and he says our production is native gas no it is not of care disqualify words they get you on the merits of you know the issue so i don't think it affects the merits of your disqualified from the case they're effect of the person with the conflict arguing the case is i don't know that's ever been addressed i do want to get to a couple things said on the merits when he says his client's production is native gas it is not and the reason i can say that is because we allege it's storage gas and you have to accept our allegations as true for purposes of determining jurisdiction subject matter jurisdiction so they aren't it's not in this case not right now that may be something on the merits that they want to argue and that's another thing you can't go to the merits and they keep going to the merits of the client you can't go to the merits of the claim and then rule that  a lack of jurisdiction subject matter jurisdiction they're subject matter jurisdiction in this case will argue the merits when we present evidence no evidence was presented they just don't wan damages they're in the state court saying we can't go there they're in the federal court saying we can't come here they're all saying we have to go the commissioner and the commissioner can award damages in that uniquely different they're just saying there's just no remedy but they could have intentionally drilled a well to drain the storage gas of our facility and produced it with impunity and sold it and made millions of dollars from that gas which wasn't faiers they could do that without consequence according to their arguments in this case federal jurisdiction exists because the natural gas act requires that in the extension of its facilities of a facility can only be done if you have the appropriate certificate there not a natural gas company and i refer you to again fifteen us cities seventy seven seventy f c one a no natural gas company or person can do this without a certificate that's what it says federal ship without a federal certificate which means they're caught their conduct in drug in draining the storage gas and selling it through that well is without a certificate it isn't authorized and it's that authorize cond under federal law that gives rise to the conversion claim because that's an element of conversion you have to it has to you don't have the right to take it and that's the reason why there's a federal question in this case a significant one a substantial one a one that's being disputed and one that should be addressed by the