that's a general statement that this court has made clear in bennett versus s c c that you thousand sixteen days but all district courts generally have original jurisdiction over all civil actions arising under the constitution laws and treaties of the united states and provisions for agency review for administrative agencies do not restrict judicial review unless the statutory schemes displays a fairly discernible intent to limit jurisdiction and the claims that issue of the type congress intended to be reviewed within the question of whether the statutory scheme set forth in the natural gas act limits the district court's ability to hear a case about the constitutionality of congress's original delegation of the governmental power of eminent domain and how that actually plays out than where you give it yes or and so what i would propose to do is to really cut right to the heart of the two key points here and just dive right into it from our perspective meaningful meaningful judicial review is the most important aspect of this entire case and so the court of binet here two years ago said the exact same thing that the most and for an important factor in the thunder bay since standard is analyzing meaningful judicial review and that even standing purposes we do not have a path to have this issue heard in a meaningful manner now if if the court were to direct and say that further is the right environment it's a new want to answer your question my question seems to be no you don't lose it but practically meaningfully you do because of time what's going to happen i think in the interim absolute absolutely and that's part of what this court's purpose in analyzing this case is to look and understand what a meaningful judicial review if the court were to find that  would be less meaningful to the landowners obviously here if by the time they get their complaints her you know the pipe is already in the ground a three point seven billion dollars project the likelihood i think we all know of something like that being ripped out of the ground is pretty slim and so we look at  in the other cases that guide us that say that federal judicial review must be meaningfully accessible that's the first part and here it's not meaningfully accessible because you have to wait too long before the harm or hurts and proceedings that pose some risk of additional or irremediable harm beyond the burdens associated with the normal dispute resolution process which we all know can take time they do not constitute meaningful judicial review and we know from this this court's particular vs haitian refugee center case that the court should look to the practical realities of the law and how it actually finds its weekly place great emphasis on that particular point and finally we know that meaningful judicial review is lacking manner they can't go to for it can't get to the court of appeals within the statutory review scheme because the courthouse doors are effectively barred and they can't raise their complaints in condemnation pruett proceedings which are already ongoing there's uniform case all that says that is not possible i think everyone agrees that you can't have these kick these sorts of challenges heard in the condemnation proceedings so instead ferk admits he confirms is that first actually possesses no discretion whatsoever to grant or deny the power of eminent domain the meaningful judicial review that i want to highlight is these tolling orders even for could and would hear this this case which they won't they bar the courthouse doors with the use of these tolling orders and that's the practicality we're talking about that mcnair ish indicates for us congress contemplated swift action on these petitions for rehearing they gave for thirty days to make a decision so what is first do first is found in around the skirt around the actual require congress mandate and so they will issue a petition for further reconsideration but then they actually refused to do anything until there's no chance to actually go to the court of appeals before a fight is in the ground and so for going to be they run roughshod of us they don't actually mention it specifically that the court or start first has used tolling orders and ninety nine percent of the cases so when you say tolan orders you are saying the army are you something this is thirty day there's a thirty day requirement cited in our brief that's in the first regulations they have are under the natural gas if they have thirty days there if they do not order make a finding on the petition for rehearing within thirty days it automatically is granted and so what they do is they sit on it they find an end around they say well wait we're going to consider a rehearing but we're going to take our time in doing it and ninety nine percent of the of the cases in the last eight years that appalachian mountain advocates have analyzed and i've cited to that in the brief ninety nine percent of those cases they have not they granted these tolling orders and put the process on costs you can't get to the court of appeals for the administrative action and seventy four out of seventy five of those they have denied their relief those alternately sometimes as long as over two hundred days after that there's not required to lead no they have to make a decision about whether to hear it or whether it's not here and so they found this sort of gap in the law if you will well that's we can sit on this and so it without them ruling on that petition for a hearing and you have to do that before you can go to the court of appeals they've effectively barred the courthouse doors litigants to be able to get there and so that weighs in with this meaningful judicial review there is not a meaningful way to get to the court of appeals threw the first process there's no practical way and we look at the realities of the law and how it operates on the ground the trees are down the stinks the springs are song the damage is done in its name is that really can't be compensate and that's what the test teaches us so the old adage which is cliche but i'll say it anyways justice delayed is justice denied that's exactly the situation that we have here we're not able to go to the district court and have these important claims her  harm that would arise and this goes to to the nature intent and purpose as well of the statutory scheme we're dealing with your but the harm that would occur to these landowners if they can't have their claim serves their core challenges to the delegation the original delegation of power from congress through the natural gas act and ultimately to private parties of the governmental power of eminent domain and if we get to the end of this whole thing and a court determines wait a minute you didn't have the power in the first place to give the power of eminent domain then then i just learned today from a number of land owners a tree that started growing in seven hundred seventy four is no more it's gone it takes hundred years for these things to come back once you think of spring you can't get it back you know the aesthetic enjoyment which is important  people you can't compensate for that you can't undo those harm yes trees grow back it takes hundreds of years water maybe can recover depending on the damage that may be done but there is an imminent harm just basically to the landowners right to exclude all others that they don't want there this is something that's been thrust upon them it's not something that they've asked for they've not sought to be regulated to put it another way so that is the harm but second i want to address the issue of a whole lot of them where it is  medical and you are you right the overall they're all harm is sort of an outgrowth of the meaningful judicial review standard and so there's some discussion in our group particularly about how meaningful review rights under the meeting granted in here there is no chance for that really to be granted if it's all the harm has occurred and there's no way to fix it you can't undo that harm so it's a built in with the facts of what eminent domain actually means here and how construction of a pipeline actually works and what it does for the land but that's not the administrative agency review under seven seventeen are but this court and bennett found that the ambiguity of this holy collateral wrong under the funder based on the now assists reduces that factors into significance and we know as well that there are multiple vehicle by which you seek to reverse agency action and of course we can contend that our case is more and matthews in free enterprise than bennett particularly our delegation claim because the question of delegation is not procedurally into point whatsoever with any area of works coverage in fact if we are correct and if the delegation was improper which we think it was it doesn't do anything then validate the first order otherwise it doesn't impede the regulatory s further is still able to engage in their congressionally mandated duty which is to analyze the environmental impact of these projects to regulate the production and transportation of natural gas cross interstate lines they can still do all of that they just won't be able to use the power of eminent domain and convey that to mt valley pipeline or any other pipeline and so it doesn't it is not intrinsically in twined with the purpose and scope of the regulatory scheme that was invision by congress in fact we would go so far as to argue that it further sparks regulatory scheme because one of the first stated standards and this is one of the things we're challenging in the underlying complaint as a sort of byproduct of the delegation problem is that if the market truly demanded this if this was truly in the public needed for public use then the private markets would support the economic construction of such a project and so they would need to use the power of eminent domain you could go out in acquire your easements realities is the delay and in that situation mcnary you have to say that the plaintiffs in that case had to submit to a process that was going to ultimately result in them being expelled from the country and so by virtue of having to engage in the regulated activity in w engaged with the regulatory body they were guaranteeing that they had no real option to gain the relief they want and so we extrapolate the same principle for our case here that it's so so in this case where as you say ninety situation in one of the supreme court cases have we had a situation where the administrative agency has created a hurdle so high that one cannot jump over and has no control about going around it you can't go through it and you can't go over it until they say so and so all of the case that's the easiest way to distinguish all of these cases is to say that none of the supreme court cases an error any other appellate court cases that have dealt with these issues have seen such a barrier constructed between agency review and the next  what about the practical reality that here is guaranteed that there will be a delay in these sorts of things because as opposing counsel sense hundred percent effectively your hon statute that's fifteen u s c section seven seventeen are a and it's been long held by multiple courts including courts and three separate circuits that this particular provision in section seventeen are a does not require the commission to act on the merits conclusively in terms of these were hearing requests within thirty days going back to nine sixty nine the d c circuit adopted the agency's interpretation which was that this statutory provision is intended only to allow the commission to deny rehearing applications by silence so the for review of the commission's orders on rehearing in the pipeline case so i mean that where the us and definition of review but what how would you define meaningful  the kind it has to him how would you define meaningful your honor i think it has to be a review that the court is that the court traditionally gives to all of these pipeline projects at the conclusion of the agency proceeding it is meaningful because the court is considering that all of the issues relating to the commission's pipeline authorization that a single time and the court has all of the arguments from all order authorizing the pipeline the for the commission would take that back on review and pipeline that's been place the ground can be excavated it is possible to  an appropriate role for i'm not aware your honor if you have exactly but but i will say that courts have remained at the agency in some instances on specific issues related to pipeline authorization so in some cases they agency has had to redo environmental analysis or conduct supplemental environmental analysis it certainly is possible for the agency to conduct additional proceedings and to do additional things to address any concerns that the courts may have honor i think that this court's decision in bennett highlights why why the supreme court in free enterprise allowed those particular claims to go forward as you know both bennett and the free enterprise fun avenue to judicial review and free enterprise that plaintiff there was challenging the public company and county board which was created by the securities and exchange commission or excuse me it was the members are appointed by the securities and exchange commission so there was actually in that case don't order of the f c c that could have resulted in judicial review and by contrast in bennett and as in this case here there is an administrative proceeding and here as in bennett the appellants are parties to that administrate of proceeding and they will have access to the core at the conclusion and but in the meantime they simply can't bypass those procedures and bring a freestanding complaint in district court to try to sidestep the congressional procedures the court placed emphasis on the fact that they are the petitioner was not art as a practical matter from all at this to the courts here it appears they are barred as a practical matter from all asked us to the courts until the damage is done isn't that an m orton distinction while your honor i would not agree that the commission is barring access to the courts the commission is following the processes that are laid down by congress and the natural gas act and under that process the appellant's do have access to the courts once the agency is completed it's true that under the certificate order there is eminent domain authority that confers with that's the certificate order and with the doses to proceed that for issues subsequently but that is a function of the congressional design so it's this is the same scenario as under base then elgin and bennett where courts have held that a statutory exclusive judicial review scheme even if it delays access to the courts still provides access and meaningful judicial review direct review of the first certificate on the theory that the certificate should not be told in that the tolling water is in effect so this this ad your you understand point though is that under the natural gas act there's got to be a choice of where the cases go they can go to the d c circuit or they could have been found here that was up to the people that were following the case but under the natural gas act the only go one of the other so in this particular case on the mountain valley side the cases were filed in the d raising the same or going and so all of those points can be in our being raised in that court as we speak so i don't this court would say that the d c circuit while it's independent obviously is not meaningful of course or the main or you are asking us to move her or wait and see what they come out on not not wait and see it all but simply note that the jurisdiction has attached in the d c circuit in those cases ought to proceed to a decision that the structure of the act is not to have multiple forms adjudicating these things as they may be filed but to have the appeal in the sense that it was untimely fall for some reason like that you have the right to being a decision of the district court on in no jurisdiction i'm simply suggesting that the decision of the district saying is what a four circuit and we can issue an opinion i don't think it gets reversed because we decide to give out and they can get for different reasons i will simply apologize if i was not clear but i was simply trying to make the point that the concept was asserted that we can't get into court and the could not open the doors of the courthouse or bar to us all those arguments we just heard and they're being exercise an either or under that seven seventeen or b it can go either way but the idea that oh we're where all of my hands are tied to keep doing the thing i can't get to court my  time left i would submit that there's a step even before under brace here and the step is city of tacoma which is cited in briefs under the natural gas act supreme court of the united states one nine hundred fifty eight which held that section nineteen of the natural gas act governs review of orders of fur and this is a quote all issues in herring in the controversy and so the first question i submit for the court in a case like this is what is the controversy and i think from what we've heard today and take a look at the complaint the controversy is the project that's what the overall controversy is about that's the gist of the complaint that's what is complained about in the complaint that's what's complained about in the argument and you define the controversy that way then the question is what issues what issues are covered and city of tacoma says all the issues the issues in hearing the controversy that would be factual issues legal issues statutory issues constitutional issues all issues i would simply leave you with this quote from the tenth circuit the court i'd like to start with the the last point that mr massey just made me about city of tacoma i'd point out first that was a case decided before thunder basin and i think if you take that to its logical end we run into a situation where  no claims whatsoever whether they're a delegation challenge or some other issue could ever go outside of ferk in a proceeding before a district court and that's precisely what's under basins as can't happen there are certain situations where you have explicit divest we wouldn't need to under base and we would have any of this analysis at all and first would have more power than the federal courts which i don't think is the case and so when he talks about the the the controversy and it in hairs in the first process in this case that's simply not correct the controversy here is the delegation and the effects of that delegation that's in our complaints in our motion for preliminary injunction we explain how the process is deficient it's the root cause and the symptoms and it all stems from the overly broad delegation and that's the ultimate core of this case and so i want to jump next to what is the remedy look like this i think that's one of the most important points i've heard today and what first tells us is what we don't know because we've never had the situation before that is indicative that there is no chance for for meaningful judicial review here you have to have a final order from first before you can get to the court of appeals to challenge it and if they sit on these using these tolling orders they said on the petition for rehearing for two hundred twelve days eighty five days three hundred days it's a rush to get the piping around as fast as possible that's the reality we all know it and the only way the only potential way i'm not suggesting in any way the court does this but the only pos the way to get around these tolling orders and make sure that there is meaningful judicial review is to do on a few things it's to find in effect of the tolling orders which is not really the challenge before this court that's what's pending in d c according to m or to you can't let for allow construction to proceed while these important questions are out there being resolved and of course the part that's absent from from first statement there is the construction proceeds that is going on as we said in this court right now trees are coming down  authority certainly can be raised in there but are landowners in this case in the case before this course is about delegation and whether or not the district court properly has jurisdiction to hear those claims not whether or not tolling or that's just sort of the factual matrix in which we find ourselves is the reality here is that firking uses these tolling orders to bar the doors and that factors into the thunder basin analysis and it shows here it's the most important factor that shows why the district court must  different times absolutely in congress could have explicitly divested the district court and thus this court from jurisdiction they didn't do that and that's where thunder basin comes in the supreme court has told us what implicit divestment looks like and under what situations  can occur and that has trickled down to the progeny of cases after thunder basin so we have to look at those factors to determine it and so the only way around it meaningful judicial review in this case is a construction just doesn't occur until these challenges are heard and so we submit to the district court