the next matter for oral are you scorning is waterfront commission new york harbor versus the governor of new jersey and we have time divided  issues which we need to address and so i would suggest that we concentrate at least take up those issues at the outset undisputed facts one of which is the vast majority of port activity currently occurs in new jersey new york has ignored it and is apparently does interested in this case and all parties agree agreement was that they could have annual reviews correct yes but there have been as far as i can tell i don't see anything in the record indicate that there have been a dual reviews as a matter of course i believe that the i don't know the exact number of years but for so the past several years of the commission has not submitted an annual report to the state so shouldn't we read that to be that if the intent of those that enter the compact was to be honored that the way to get out of this is for there to be annual reviews in the parties get in the room and both sides agree to terminate because the commission can act without the concurrence of of both commissioners right yes but that did sides to primarily on the new jersey side and attempts by them or jersey legislature to amend the compact in recent years has not been supported by include that the sewage be sued provision seems to be a standalone power and the enforcement provision a separate one the  the actions of the commissioners needing to be a magnanimous consent of both commissioners for the for the commission to act doesn't address how to deal with a situation where there is where we would simply have to remain on for fact finding about what the authorization was of legal counsel and i realize there's a few different issues in there but if you can talk us through those in terms that the authorization of counsel to to  counsel to the commission did not have to pass any to bring the suit which i think was the initial the initial question that you raised the the commission relies on to a though is or would be that this is this is not just another legal matter it goes to the very existence of the commission absolutely your honor and that's a point that we history or the ability to sue one of the two states that created the compact and challenge the weevil adoption of a statute and we believe that that in and of itself required the unanimous approval of the commissioners and if you think about it and of the they see that go over murphy actually governor christie signed into law a chapter three hundred and twenty four dollars which requires that the governor implement the remove all of the state of new jersey from the compact at the very least they should have convened a meeting of the commissioners because this was a momentous occurrence and either sought commissioner approval to challenge the an act meant by the state in the jersey or at the very least advise them as to how they intended to proceed but none of that occurred in fact what hat did happen was the commission counsel retained outside counsel and they complete file the complaint without even notifying either of the commissioners and it wasn't until after the complaint was filed that even commissioner learned that a suit had been filed and then so subsequently commission counsel goes to a commissioner goal stokley new york commission and he says i'm all right with what you did so it's a subsequent gratification one is a boy i don't disagree with  anything you've said so far but all of that is essentially a factual and historical recitation of what either occurred or did not occur here and as i indicated the outset new jersey has raised these preliminary issues these threshold issues which we need to deal with and i realize you're touching on that but is is the short answer here simply that  the compact does not speak at all with already to initiate a suit that would wrap up or does all the commission nor does it speak to the ability to hire outside counsel for something that is as final as that and further that a narrower by laws enacted pursuit of the compact that don't provide any  authority in that regard either because of her i did so what more is there to say at least as to as to that point regarding the authority of either the executive director or as seems to have been the case here general counsel well on the point that i want to making regarding hellhole going to commissioner goals i would take that as an admission on the part of counsel that commissioner approval was required and with that admission the failure to require to receive as the compact required unanimous approval even though the new jersey commissioner who recused himself and under texas vs new and so the governor does have certain specific duties to fulfill here however that would be pursued to least relative to i mean it's just the commission trying to keep itself alive when both states want to go away i want to be very careful here because i acknowledge that there are serious issues at stake here but this is not an issue where we are intending to simply relieve the water from of all regulation the state has made a determination in its discretion that it wants to go in slightly different direction on this and no longer lie on the commission to do so and york is not objected to that that's within our power to do it protection and advocacy i think has given us some guidance or some criteria in any event as to whether a state is a real defendant in interest or how do we apply that here to prevent another state officer from taking some action that the legislature had directed to do and they feel they said we should find it very very narrow circumstances that that would be permissible and there to two reasons why that should not be permissible here one is that the authorizing compact here does not give the commission any white of important against either state this issue of the important commission intending to to force the states into something was not contemplated in  vested in the states not in government murphy alone obviously he's exactly yeah but really this is a suit about the state about what states should be allowed to do in the compact with each other and the fact is as a practical matter then if we if we agree with you and and say at the threshold they didn't have a right to bring this action then what happens to is ever just a case stated where new jersey in new york sue one another in the supreme court contract partner has responsibilities under the contract so i think the issue of the parties who are the persons who are subjects of the compact is relevant because the states are clearly not this is not a compact with the states or green and they are bound by some kind of duties are obligated unlike many other complex to do that is also relevant to the question of who is intended to be within the scope of enforcement powers of the of the commission states clearly not within that in terms of the ambiguity then for the nation and with law i agree the rules of statutory interpretation here or contractual interpretation and does it matter it does matter to some extent because both under ten and under the court's most recent speaking to this in way in line look by contract and strolls to a contract between the states and so there is a pattern principle of contract law that speaks in the silence here and a well understood and well established almost black letter definition of person to say that the commission doesn't have the capacity to bring this suit is that and and there is it clear that the that that that it forced me provision without limitation the states clearly did not surrender their immunity to suit in federal court in this compact unlike the compact in the entergy case where the case circuit found that there was a clear expression intent to surrender sovereignty so under munity and to actually give in that case the compact commission a right to sue to enforce obligations of the states under the compact neither of those conditions are present here and so we do believe why don't we have both of those here i mean in terms of the interests there they're even identical right to get certain records and certain powers that have been prescribed in the contract to the co and capacity to sue looks just like bhopal right it's suing be sued as a standalone power unless you're unless you're arguing to us that the enforcement provision with its limitation on the please the court i'm sean kelly for the waterfront condition of new york harbor i assume from your honour's comments earlier that you would prefer that i address the procedural defenses st in the deal with merits subsequently completely i will take it in that order then the the bulk of the procedural defenses raised by the appellants here are pressed on theories that either the commission is not a proper plaintiff or the governor is not a proper defendant or that the claim itself is not a proper in vocation of the expert a young exception to sovereign immunity we responded in our brief with a great many cases addressing each one of those land and her eyes in maryland the distinction between the cases we are bringing we're seeking purely prospective purely equitable really against a specific identified state official who is charged in the statute with implementing that preempted state law and who therefore are the expert a young exception that is different from the kind of case where real and substantial party and enters whether the judgment saat would expended self on the public treasury or domain or interfere with public administration at stopping the gov from notifying new jersey's withdrawal from the compact would would seem to interfere with public administration only only incidentally your honor and i think the open itself as well as dollars redirect employer assessments here in the commission coffers into new jersey's an end doesn't that it is a consequence in affecting  of the compact also seems to work to require that budgets are submitted to the governor and excess requirements are actually assessed against the state treasury so that's specific performance would also require outlays from the state treasury under the terms of the compact how does that not go directly to the new jersey as the state as that is already interest here i'm not aware of anything the waterfront commissions nonetheless is an interstate and of a not a state and the like and was the case in the end it's an interstate entity which is separate from state and these and for that matter separate from federal a contract that has been negotiated between two states so it is is similar to a contract action and a lot of ways but it's not got tracked action we don't have a claim a breach of contract and we would not that would not be a proper claim for us to assert be claim that we can assert as a commission is an ex parte young claim where we are seeking relief to prevent a state actor from enforcing a preemptive state law that is a conflict with a federal statute and there's no question that although d this was a do you agree with mr love statement that new york has no problem with new jersey's withdrawal from the compact but no i do not agree with that for two reasons and i suppose the the technically correct answer is there's nothing in the record that says what new york's position is it's  record including the glaring omission of new york's lack of intervention in this case we can dip make something of that can't we yes we can well i wouldn't want to speculate as to why they chose to let the water the water from commission carry the ball themselves especially with political entities there can be a lot of different we are and not speculate but can we appropriately infer that they at least made that decision given their mean i'm sure they know about the case and i'm i'm sure they gave thought to it but beyond that i'm going to be on that little bit of speculation i would not want to go but we can also see in the again today from this podium that their understanding as the new york is being is not inclined to reach an agreement to unwind of the waterfront commission of this point but but shouldn't i don't know it just looks like it should be a case between the two states well why is that wrong i don't believe it's wrong i think if we're to have them going to states just because it could have been doesn't mean that looking at it and judge judge made remedy and equitable remedy yes right and it's not not a free standing claim under the supremacy clause congress can abrogate that equitable right and powers like the power to prevent interference with a contract or to prevent violations of the compact it also goes to pains through the amendment to ensure that those those kinds of claims for injunctive relief cannot be brought against the states what why shouldn't we read those two provisions in the contract itself blessed by congress to be congressional abrogation of notwithstanding the fact that the preempting federal legislation i did not create any kind of separate statutory cause of action and the reason the reasoning in those cases was that you don't need a statutory cause of action created by the preempting federal statute you you're seeking equitable relieve via the theory that was st articulated in export a young it is it is a judge made remedy in that sense but but my question goes to not the power to bring it but the qualification of that power because those those two provisions a look like the parties to the compact were trying to ensure that the commission wasn't able to bring suit against either of those parties that if there was going to be dispute between the two of them i think that that would result in an impasse between the commissioners and and the commission is precluded in that provision of that definition of persons from bringing suit against a state well number one of course we're not bringing suit against the state we're bringing suit against the individual state officer and while that sounds like i'm quibbling it's not an unimportant quibble in this context it's  we brought up in this case the compact define purses to include natural purses partnerships and any other legal entities but here i don't get the sense that you sued governor emerge murphy is a natural person you sued him  governor yesterday and in the definition specifically excludes the united states any state or territory thereof etc or authority of one or more of the foregoing so why haven't  capacity i'm not sure that technically falls within the the definition of an authority do you think that's do you think that's what already means where what was intended by the use of it were here as opposed to problem but with already includes an authority of the government i e a government actor like the governor the chief executive then you don't fall within the definition and you cannot the commission cannot maintain a civil action frankly i guess this defendant but i don't think that that provision could be read to exclude the possibility of the next party young action because that's that's permissible in order for the federal law to be vindicated in the face of a a a preemptive state law with which it is inconsistent provision then the equitable power to bring the expertise young suit has been curtailed by the terms of this federal law itself i don't know i don't know young cause of action exists separate and apart from statutory authorization seek prospective injunctive relief to prevent the carrying out of a state law that is preempted by federal law something i think it's really quite similar to the original in their brief that they they believe that the ex parte young exception here should not wide because this case falls within an exception to that exception in the sense that are going to look a special sovereign interest and they rely only on a kernel an indian tribe case of course has to do with a native american tribal claim to state owned lands and in that context the supreme court held that the export of young exception was exception does not apply and the case is barred by sovereign immunity our case obviously doesn't challenge anything about new jersey's title to real estate we're not seeking an award of damages from new jersey we are not seeking anything other than equitable relief and only against the identified state of the one and only identified state actor in the statute who is responsible for enforcement eleven quick question mr kelly if we rule in your  favor is there anything to prevent new york in new jersey from agreeing that the compact should be dissolved and taking action to effectuate that no one there is not nor is there anything to prevent goddess tomorrow i don't want to speculate on what new york has or hasn't done the fact is that this is not a proper case to test out in new york has an objection they have a right that they can assert against injures and there is nothing preventing them and it's not appropriate to essentially let the count the commission speak or stand  should have been brought by a party to the compound and not by the commission which is one million instrumentality of the compact not actually a pardon armstrong the armstrong decision goes to this very issue of whether or not he compact not a compact but a lot it cuts circumstances would not fall within that exception to the person that if you thank you very much you love you to all three of are you going for your helpful