the st case from a calendar is fenech a nation versus state of new york arbitration panel majority expressly found that the plain terms of the nation state came in contact did not place years fifteen to twenty one payment the panel majority further knowledged that neither party presented such an obligation to the secretary during the two thousand and two review process and the secretary made no mention of it during her consideration of the compact rd and finally the panel majority accordingly made no claim that the secretary in fact considered and approved such a payment obligation nor did the district court nor does the state but express a program view an approval of contact terms and a revenue sharing terms and particular is precisely what a grip requires and going beyond contact interpretation to enforce the years fifteen to twenty one payment obligation on the nation in the absence of such a panel majority acted in manifest disregard townhouse treated the extension as part of the original contract we thought i had to stand approving confirming observation awards don't even get to the merits we say fully and accurately yes your honor those who are the we are not questioning the panel majority's interpretation of the compact we understand the strictures of manifest disregard review but what we are saying is taking the compact interpretation as the panel did it taking that as a given one can not extrapolate from the panel majority's as to what would happen upon renewal would the payment obligation which i should say spanned the period of renewal the fourteen year payment obligation would that continue to as and and then the payment would come to an end or would there be a restart that's correct so i need to be crystal clear we are taking the panel's contract conclusions as the very predicate of our argument because the panel sit two critical things st it's said within the four corners of the compact there is no mention of  years fifteen to twenty one payment obligation that was not presented to the secretary by virtue of the plain terms of the contact and then the panel majority said and nor did the parties present the obligation to the secretary in any other form the part submissions very entailed submissions to the secretary of the interior discussed a payment obligation terms of years one to fourteen dollars said nothing beyond that so the panel found years fifteen to twenty one dollars payment obligation to yes yes your honor what why is it that we can't look at it in the following slightly higher order way so why take it that your argument is that the secretary did not approve this arguably requires specific secretary approval of that ambiguous provision that's your that's your position right our position is that no payment obligation can be enforced absent the secretary ha citizen what was what was the utility or purpose of having an arbitration provision in other words why can't we see this as the secretary's approval of among other things an arbitration provision where arbitration would among other things resolve ambiguity as in that's the approval of the compact and if that's true and i might be wrong about that and you might dispute it but if that's true then the system of approval that you're relying on and i appreciate it has worked in other words you have an ambiguous term resolved  and that is the mechanism that the secretary has approved so that i think your honor that's that's that's pretty much the state's argument here which is that the secretary approved an ambiguity or prove the arbitration  ability to resolve an ambiguity but what the secretary approved was a dispute resolution process and here if the if the arbitration panel had found that language the terms were clear we wouldn't be here you know that would have made it clear that the secretary had in fact considered this provision or if the arbitration panel had said there was extensive evidence presented to the secretary and therefore she blessed the provision we wouldn't be here but i think this notion that the secretary approved any resolution of ambiguities goes too far and let me give you an example if the if there is an ambiguity in the compact and there are trace in panel have resolved it to require the nation to pay a gaming tax that would clearly be in violation of section carte blanche to ordain any ambiguity any interpretation of ambiguity what in fact violation violate it because the the requirement is secretarial approval especially a revenue sharing provisions is a but a compact can't take effect without that approval and no provisions are exempted from it and that argument which the state makes that well once a compact is approved then any provision can have force that's a very dangerous argument because it would allow states in tribes to enter into side agreements to have agreements with respect to other concerns the flip side of that this country is that if you if you're right then it might affairs who had as part of his purview the proof as i want to know what he's what he says if i think it's critical is that this is not any provision this revenue sharing provision highly important and highly controversial provision especially given the level payments here so where you have it and where you have a situation where the secretary in the original approval painstakingly reviewed the year went to fourteen obligation commission economic analysis since commission further study from the parties to then meeting to go back to your point about the provisions judge lawyer make a really important fact to is to keep in mind here that the secretary only deemed this compact approved in so far as consistent with the provisions of  later if a arbitration panel majority conjures from an ambiguity a provision that that goes into effect absent any ability of the secretary to then review that provision to see whether it is in fact nothing was presented to the secretary simply can't be squared with the notion that the secretary in fact approved this incredibly important obligation that normally would receive intense secretarial review agreement to arbitrate they're just it was a contract that they agreed to a conflict that was approved by the secretary and the question is did the arbitrators discharge their duty and then she has a clear yes and i think it's critical for us to  i think focus on what the relevant ascended of review here is for this award they are not seeking to vacate this under the statutory bases of the f a they are seeking to vacate this under the manifest disregard standard which as a  of knowledge recognized is effect of the doctrine of last resort such a very high bar and it really is dictates that severely limits just to review of arbitration awards and i'm happy to walk through think it's a two step analysis with an objective element and a subjective element that neither really are satisfied here objective lee the question is was there a clear law that applied and we  it to the court and as a district court concluded there was not the nation has relied upon you know the various statutes under the grow but those really only go to approving a new compact or proving an amendment to a contract neither of which are in play here is no dispute i think in a sense has already conceded that this is not in a minute is that correct that's correct and it's interesting ditto on pick up on that point though because it's interesting as and kind of jumping to the nd element subjectively but let's focus on the st before i get to this next point the st objective leigh the statues on their plane face do not apply there's nothing in it that you suggest that the secretary played any role in reviewing arbitration awards or reviewing arbitration panels interpretation of the compact nothing in the law and they don't cite any law or case to support that premise of their extrapolating different policies to suggest that's how the courts read the law i submit to the court that's not how the law should be read but that's the frankly the standard the standard is whether or not the panel here in considering this does they disregard a clearly   i take it because they clearly with the benefit of the cent they understood then they grappled with this issue that's being raised so they didn't disregard the law they just it what they did that's right i mean basically the nation disagrees also with their conclusion that you know with respect to whether or not they had the authority and jurisdiction to interpret the parties contra what is the scope of the secretary's approval so perhaps you can educate me on this assume for a moment that a what both parties agree is a critical part of the compact  does not get to the secretary's desk so there was you know fifty pages but two critical provisions are not reviewed by the secretary but the rest of the compact is  is is approved pursuant to the statute and to regulation but what happens with that those you know two critical or one critical provision that is not actually reviewed by the certiorari because i've been asking questions of your adversary that relates the fact that yes such very prove the contrary the compact up but there may be situations  know where you know critical portions are not specifically reviewed and and approved what happens then i think is a few a few pieces of that your honor i think it's critical to keep in mind that the way that the secretary approval set up they review and approve a compact on the front it and that includes particularly approving the dispute resolution provision in the party's contract so that's part of the contract that the secretary approved and that's what the secretary approved here so to the extent there was any dispute about the scope of that agreement which again this is a dispute about what the existing approved agreement provides there's no new term there's no matter that's conceded noticed you there so the the secretary approving this agreement approved the process by which you know any any dispute about the terms would be result what is i guess what is there is compelling evidence that the secretary was wholly or entirely unaware of the critical provision so i'm trying to get at what is a means to approve the compact but i think it means a number of things st off i think that's going to going much further than one needs to go here number one to stand that number two i'd also suggest as the panel or i should say as the as the panel concluded there was no evidence to suggest that there's any type of misleading of the of the secretary i want i'm saying just go go with me just go with me i'm trying to understand the parameters of of this and just understand the process i think the process is the remit is approved that says if there's a disagreement about an approved agreements and the secretary will weigh in on that there's well i think that if what if the secretary after the arbitration panel issued this decision  terms of the timing for the secretary to play a role whether it's approval of the compact initially or whether evidence from the secretary for the arbitration the the nation had their opportunities presented that they either presented it and it was it was either disregarded waived at this point we have an arbitration award that's subject to the f a a and subject to the parties agreement is final and binding and if this court that plays a role in enforcing an arbitration award and considering whether or when the arbitration was initiated the secretary in fact did indicate its view of the of the arbitration and who should be making this decision the secretary specifically withdrew a technical assistance letter and said we know we the department ch that doesn't like the decision and they go back to the secretary and ask the secretary to review that determination that's not something that's in the law and frankly that gets inconsistent with the clear indication from the secretary says no i defer to the arbitration standard the different part applied and that this court applies under the manifest disregard standard and it was talked about why i think on the plain terms of the statutes that don't apply but there's also the very important subjective element here the intent of the arbitrators that's to be a showing they intentionally of knowledge understood that law apply and decided and disregarded it clouded it i think just pulling your decision in the wallace be better or better decision you no it's important to take into account what was before the arbitrators and here it's interesting their argument made to them was about an allegedly new term effectively in amendments that's not an argument they're making here but that was the argument two presented  and they determined no we are not imposing a new term we are basically exercising our clear mandate to interpret the cards the party's contract and i think that's important to note here that there's this is you know very very far afield from the very few cases the court has found to satisfy the very high bar a manifest disregard such as the the new york telephone the communications case where it was clear the arbitrators again olive's there was precedent on point and said no i'm not going to apply that i'm going to apply out of circuit cases i think that is night and day for what we have here but again even if even if the nation as it does and frankly this court thinks that there are times may have gotten it wrong that is not enough to overturn the award and i did i did want to speak just laura to your point about what i think is kind of a slippery slope in terms of the nation's argument going too far this idea that ambiguous terms would be subject to some sort to interpret in a contract that a correct correct and again this was a majority of with the chair the panel was a former federal district judge and certainly well within their authority jurisdiction and expertise to assert that a good thing or a bad thing extent that what we came out with here again this was the arbitration panel to determine part of part of i guess the worry always in the context of  litigation involving nations is that and i think that the legislative history bears this out we're told or were suggested by congress that we should really read everything in the light most favorable to the nation and i don't think that you disagree with that how then should we read not only the arbitration before the court on this the panel concluded there's nothing that necessarily dictates or changes the way the panel should've interpreted this contract in terms of giving one side and advantage over another i think generally that but to your other point i think answering your other question your honor and this goes to this idea of a potential conflict in f a and it drop i don't think there's a conflict here i think that it's pretty clear that the parties agreed to arbitrate their dispute they agreed that any award be final and binding and would be subject to force and by the district court so i don't think there's a conflict but even if there is i think we cited to a th circuit case there is a very strong certainly deference and preference and you know inclination to enforce arbitration award certainly that's why there's a good such a high standard of carol will hear from senator if you just poor i want to go st to judge floyd raised questions about what exactly was approved with the compact with the secretary made that crystal clear with respect to revenue sharing she made it very clear that she was approv provisions in effect in this country they've all received express secretarial review that is what that is what did not happen here yes it's true that the majority acknowledged the approval requirement but is this court a set of talent in west many other cases simply acknowledging the want to just not enough to go to the secretary at some point your honor we have the nation has attempted to go to the secretary several times after before the award the secretary  after the i think you may be referring are about after after to the amended submission the secretary said i don't have a certification from the state i need a certification from the state to review and then i would be happy to review i welcome such a submission from the parties this is the state though with the arbitration decision in hand including the enforcement part of it sitting in the in the catbird seat so state had no reason to certify but the secretary clearly would consider the the views of the secretary on this critical matter of grip ministration and i i do not understand why the district court did not avail itself of that opportunity this is a really important matter of federal administration in the  court said that cry here jurisdiction ensures that there's not inconsistent administration a federal lawsuit between the courts and the agencies and here you have the agency saying we apply great scrutiny to revenue sharing provisions and we have honor and that goes to your question about the relationship though between the f a a and igor and here i think the a circuit's decision the missouri river services services versus omaha tribe case is very instructive because that was an arbitration decision that the a circuit then vacated because the th circuit said that the arbitrators had gone beyond it grizz strictures in ordering enforcement of of an award there and it was a very instant case because there there was a management contract which requires approval by the secretary it's plain terms did not allow for the arbitration work there and then in subsequent agreements negotiated between the tribe and the company which had not received secretarial approval the arbitra looked to those awards and the a circuit said no secretary approvals a very important requirement of egress and we're not going to enforce an award that contravenes that approval requirement which is exactly what we have here we have the panel seeking to enforce an award of a provision that clearly was not reviewed by the secretary and the that award i'm subject to the strictures of it were the compact the arbitration provision was entered into pursuant to ingrid and the secretary has made it very clear that rates from new revenue sharing provisions is a linchpin of the statute so for the district court to not even ask the secretary under the primary doctrine for its views as to whether it had approved this contact provision by virtue of approving the arbitration agreement which is the states are going to do records are in what's been advanced here i don't understand why the  the term or the provision was deemed to be unambiguous and you've already agreed that the term here was ambiguous i don't think that hurts us at all you want to because the question is whether the secretary explicitly continue with the twenty five percent rate in effect when the initial term ended or whether when you means to continue with the original terms that did not express lee provide for any state contribution payments in years fifteen to twenty one so the panel simply wasn't in front of her and this is why the standard is met here the majority's own reasoning flouts the law that if recognized you can't do want to say something in conclusion is simply our that one can't back full and express requirement which is what the panel majority sought to do here and at the very least we would ask this hort to refer the question to the secretary