thank your honor and i all habits die hard i would prefer to address the court all standing all right good morning may please the court eric best of barnes and thornburgh on behalf of the helena public watchdogs may i request five minutes rebuttal means watch your time yes your honor this case concerns one of the most dangerous substances known to mankind spent nuclear fuel which is being buried at one of the most iconic stretches of coastline in the state of california santa no freight has alleged in the complaint in july and august of two thousand and eighteen the commercial defendants in this case of in california edison and whole stack lost control of t thin walled metal canisters each one holding approximately fifty tons of this deadly material and on these two occasions while the markets interesting thing for all these facts but oh i'm sure you that we've read your br and the holding of that case your honor the facts in the holding of general atomics are important to understand that those words in that case a licensee had and there was a proceeding in front of the n r c involving a licensee t parents of that licensee then attempted to get an injunction from the federal district court here in san diego to enjoin that proceeding finding that it would not be deemed a licensee as well in that context where there was a particular proceeding pending before the n r c this court held that the hobbs act requires the parent to go before the n r c the language that this court used in general atomics i submit your honor is not found in glory in the case issued involving preliminary or am slurries to the core issue in a proceeding should be reviewed in the same forum as the final order resolving the core issue and again your honor and glory and the facts  in the court of appeals the n r c took the position that it was not covered by the hans act but jurisdiction was not appropriate the supreme court reversed and that case said because there was a particular proceeding and  in that instance orders that were preliminary to which an ordinary reading a preliminary is before or ancillary to necessary or necessarily involved in that proceeding should be covered by the hobbs act it the key your honor in our view is that it relates to particular proceedings before the agency what the hobbs act does not say and what the supreme court did not hold is that any matter touching upon a nuclear power plant at any point in the future somehow relates back to a perceiving that happened several years earlier and the particular facts of this case demonstrated by that shouldn't be the case act of course covers particular orders particular challenges to specific types of orders from certain agencies and wires and we brought within sixty days of the agency's action in this case  complained of harm didn't start occurring until twenty million one hundred and eighty two thousand and nineteen petitioner should not have been required to predict the future and for see the the negligent operation of the transfer of fuel from the spent fuel pools into these silos instead it was permitted to it should be permitted to bring a case under the administrative procedure act as well as state and federal claims against the private defendants because those matters are not involving a particular proceeding they're not before proceeding in the n r c and are not ancillary to you did bring a proceeding before the license amendment proceeding that was the assumption adopted by the n r c in that in that case which again is not before this court public watchdogs confronted the agency with the fact that that assumption is false we now know that to be not true there is no place in which the spent nuclear fuel will be transferred into labor to for long term storage not by those timelines and not for the forseeable future i i have this language be read broadly to encompass then that we have that deadly in front of us correct your honor that language is in general atomics and that statement is there i would respect submit your honor that that is dicta and is not the statement to read the hobbs act broadly is not one it's an derogation of this court's other pronouncements as to how to interpret jurisdictional statutes to it is not consistent or found in laurean but this court doesn't need to address that or or deal with general atomics because the holding of general atomics remains the same and is not is not impacted by this case at all i would also well i mean you are on to another question you argue briefly at page thirty four of your brief that nothing in the hobbs act purports to strip federal district  of jurisdiction to hear disputes involving a private party allegedly involved in the dangerous mishandling of nuclear waste where before the district court did you raise this argument your honor i believe i don't have a citation to the excerpts of record i know them q did i well your honor i believe we did make this specific argument that the hobbs acted not deprive this court the district  when you wrote that down on page thirty four you did cited the authority i wondered what your authority was it's the text of the statute your honor there is nothing in the statute that says a private plaintiffs suing a private specific provision the provision that says challenges to agency action agency action must be brought in the court of appeals within sixty days so it's a challenge to an agency action that's what the hobbs act covers it doesn't cover lawsuits between private parties it simply covers where an agency has made a decision whether it's the n r c or another federal agency those challenges to those agency decisions must be brought in the court of appeals if they fit within this particular category it's sort of like proving a negative your honor i would say there is no case that i can cite to because to my complaint the plain terms of the st a man play complaint challenges the july of two thousand and fifty license agreement and the certificate of compliance for the whole  system that's what it does so it seems to me that object covers so your honor the complaint which spans some fifty pages makes reference to that amendment and the certificate appliance why because it is part of the historical background and the facts on which plaintiffs would rely to establish the goal that the n r c has advocated its regulatory function here and has not  protected the public health and safety in the environment and also to establish that the particular actions taken by these defendants did not comply with federal law complete yes in fact that liability action under the price anderson act and that's only against the commercial defendants southern california edison and holds act and the rd is a public nuisance claim against the current mitchell defendants pursuant to california state law in particular those last two causes of action have no are not impacted at all by the hobbs act under any reading of the statute or and frankly i'm unaware of any case law and i don't believe any was cited in which private plaintiffs could not bring case against private defendants and and again your honour's underwater how how could i say if i look at the exit ag and still read to our incidental to how can i say those and i think they've those are so i would submit your out of that if if that interpretation stands the district court's interpretation stands it effectively would be a sweeping and dramatic interpretation of the hobbs act that would preclude any claim our client is entitled to pursue and should company counsel needs to be able to advance this you know its cause in pretentiously different forms and that's something that this court and other courts are recognized in this case we brought the claims our client brought the claims that it could in federal district court and it brought the claim that it could in front of the n r c based on the false premise in the law and the licensing amendment but it can't mix and match for example it couldn't bring before the n r c a public nuisance claim against the commercial defendants the commercial defendants are not an agency i think there's no there's no basis to bring it to to a six petition against the commercial defendants in front of the  conversely we couldn't bring a challenge to the process used by the agency in evaluating the license amendment in front of the federal district court unless and until the agency made a decision so to our position your honor is that we've taken the tack to the avenues that we had to in order to pursue the claims that were present and that only came into existence in two thousand and nineteen  the transfer of spent nuclear fuel from wet pools where it's been safely held for decades into these casts these defective canisters and to put in this location and specifically to require some objective rd party to assess the risks because that up until this point all of the risk analysis has been done by the commercial defendants and has been simply submitted to the agency for it to review our validation the complaint is that the agency has has not complied with its own regulations requiring it to directly observe and verify the safety of the procedures and again these are these are the allegations in the complaint that are supported and it's our position that we should be entitled to proceed on that at this point your honor dozens of these canisters have been buried while this case is pending we requested the commercial defense to refrain from continuing to bury the canisters during the pendency of the case and they declined so at this point there's still about ten or eleven canisters that we would ask not be moved why because once they're in the ground according to what the commercial defense of said them safely and two we would ask that the spent fuel pools that exists on the site be required to be to maintained and specifically since the pendency of this case a commercial defendants have indicated that they are going to destroy those pools completely demolish them and that would leave no location on site to transfer spent fuel if there's a leak or some kind of breach into a safe that proceeding that that petition is pending before the n r c and that is before the hobbs act it was before the n r c and in fact we filed the petition for judicial review in front of this court so that matter is proceeding sadly from this  one why is that different because in that case we are simply pointing out that the original decision in two thousand and fifteen was based on a false premise as we now know and it needs to be examined in light of the regulations and the requirements based on the r c whereas what we're trying to protect against in the district court action is an ongoing public nuisance a anticipatory damage tort that's being inflicted upon our client as well as the agency's failure to enforce its own regulations and and allowing this activity to continue so there is overlap in some of the relief but it is not uniform and i would submit your honor the fact that we're in two different forums doesn't mean we have to pick one i'm i'm i'm not i think our position is that we should be entitled to proceed where the law allows us and this court we're asking simply for the is that public wants dogs this is not let me put it this way but this report correctly dismissed the single a p a claim against the commission in this case but this is not the only opportunity that public watchdogs citizen petition public watchdogs filed with the commission raising safety issues at the songs facility now that is the process and that proceeds under ten c and six that process the citizen petition process is a commonly used and accepted way to bring safety issues to the commission's attention for the commission to address those concerns and then supervise an not respond in any answer to the those allegations and in a case that would be record review in there with your record of the decisions that the commission has made at the songs facility but we would which is the one we've really got to deal with here the the over general atomics versions you new u s nuclear regulatory commission case does the night this court dismissed this recourse action or affirmed dismissal and the fact that these arise after the sixty days that's his next point right your hon so it doesn't work under the hans acts just to simply say that anything that happens after sixty days somehow is insulated from the hobbs act sure you can appreciate the problem with that your honor pointed out actions are subject to the hobbs act and so you can't simply i mean years later and complain about the way that the commission is allowing those authorized activities to complain about honor i would i don't want to characterize it as exactly the same but i think our position on that would be that the plaintiff is the master of their complaint and they are also the master of their petition so public is certainly file these issues this lawsuit before this court is the rd of four lawsuits that public watchdogs has brought my understanding is there are in fact two citizen petitions there's one that they filed in the commission is opportunity to raise whatever issues if believes should be brought to the commission's attention and my review to answer honest question as best i can on my review of the citizen petition there are some a clerks having trouble with the clock let's just do twelve and get going i think i think i i think i understand your argument on there unless judge rawlinson wants you to go through more cases i what i'd like to do is i'd like to go to the public nuisance claim and the suppose there are many circumstances where public nuisance laws well that's why i'm sorry for not and that's why i'm warning if we're not dealing with some form of conflict preemption here well i think act by statute says we look to the substance of the laws of the state unless they're in conflict with the dr sanders an act or with other district court said that the plaintiff failed adequate ill edge of public nuisance claim under california law now it seems to me that in their reply brief and i'm reading from what they say at grey brief thirty two dollars if allowed to proceed with its public duty claim it will show that unlike the public at large it has been forced to expend significant resources compadre private defendants public nuisance by participating in songs public engagement battles participating in proceedings before the california public utilities commission and filing petitions before the n r c is that enough to allege just specific injury under california law it isn't and again to come back to the pri discussions between a client and representatives of the state not to formally filed a notice asking the state of california intervene that i would need substantially more time for your honor to give you the background  mediator the court's mediator spoke with us and that's all confidential obviously what was said but we have explored those opportunities but i think as your honor points out we are we are at loggerheads because from the plaintiff perspective it is an ongoing threat to public health and safety that is ongoing and we believe it is being caused weekly we can prove that it's being caused by their activities and i have and without speaking for the defendants they disagree and so there's nuisance and the price anderson that claim cannot be brought before the n r c the only place to bring that is in the federal district court it's not psychotic nies of here and frankly the it the administrative procedure act claim is something that can only be brought in the district court based on the facts and circumstances that we raised were also in front of the n r c but as i as i pointed out it's on a it's on a different theory that is that the license amendment was predicated on a false assumption i understand