good afternoon it may please the court joshua divine deputy solicitor for the state of missouri the federal government cannot take up to nine and a half billion gallons of water each year from the city missouri without missouri at least having a constitutional standing to challenge that taking this very high standing for three reasons first missouri has standing is sovereign capacity to bring this six as and as courts or as states have done for hundreds of years states routinely soon their sovereign capacity over and over matters of allocation or diversion of water as right miller put it summarized the case law there is no difficulty in recognizing standing to protect a sovereign interests in such matters as allocation of state waters the federal that they never challenge our ability to bring a suit in our sovereign capacity in for good reason indeed nobody discuss this issue because it is legally self evident as a north dakota says on page thirty one of their brief in this court has repeatedly state that opinion states that i'm assuming it's self evident legally self evident quote no more is required and the policy behind this is is really quite simple this court already deals with complex issues in volume in this briefs and does not need  to brief self evident there is a standing that are borne out in the record and it creates tremendous costs to make them do that and i think this case well those traits because of the rule that the federal defendants are asking this court to adopt  missouri has been involved in the super eight years after eight years and bill you know the record and living in this case and indeed after the district court had already granted us an injunction the discord then went to take a laser like focus on two pages of the record ignoring the rest of the record that plainly advanced this theory of standing to sue and said that because missouri did not discuss this issue in these single two pages that it could not bring suit in its sovereign capacity now that's that's troubling for a number of reasons but it also doesn't it doesn't get rid of this case all it does is force litigants like the city missouri to refile this is a jurisdictional dismissal as a district court said or held again restarting an eight year process or longer of just so we can say that we are suing in our sovereign capacity this is exactly the type of theory that this or has repeatedly said need not be grete the second reason it was telling people if it isn't self evident you need to spend a few pages telling us why yes and this is a self evident there are you seeing on the it is undisputed that the whole idea of this project is to take away water from missouri for the benefit of some communities in north dakota is a little bit odd to say something self evident when you're talking about a state injury because you usually want to know that the state has asserted the injury in fact field mean the way that matters so if you have a proprietary injury for example it seems a little bit odd to say well you don't ever have to say anything about a proprietary injury in prisons or district court and then it can just be affirmed based on a theory us seven hundred states that we party has an injunction they have standing to sue to force that injunction and that's what we've done here this is this is again another very straightforward way why we have seen the most complicated way where  know that the discord does not have to necessarily stand the record but when certain facts are borne out these facts are going out in this motion for summary judgment to use undisputed in those motions for summary judgment that's the that the project will divert we'll have two responses that your honor one is you're not going to see that nobody's going to spend thousands or hundreds of thousands of dollars suit over a bucket of water and two case after case and recognize that you can each right will have an injury is sufficient to salish injury in removes the prudential bargains for new parents pottery suits against the federal government so the case will appease a crucial distinction a sick cannot bring a parent's potter suit against the federal government to challenge the constitutionality of an act but they can to enforce a congressional act and the reason is quite simple as the georgia against pennsylvania railroad case states now in concerns only the distribution of powers between states in the national government here we're not we're not asserting that we should have more legislative powers in congress were in fact trying to seek to vindicate congressional will and that is the crucial distinction between what mellon prohibits and what massachusetts against e p a permits and they try to the federal defend try to distinguish this case by saying that well misuses against really just a proprietary interest case but they're confusing the difference between the injury in fact and the capacity in which you can sue to vindicate that injury so in massachusetts those capacities are saying and you have cited more than a dozen cases that have recognized the crucial distinction that we are making here we said it six cases that fall between mellon and sap including the supreme court case we cited five cases when a state is bringing the suit against better not yes and i mean we're talking about and so your view is that because of these as of the a p a as long as and because the a p a accommodates the understanding that a state is a party for a few purposes available to answer any questions the court may have or the northwest area water supply object is a decades old effort to provide a new source of much needed high quality drinking water for approximately eighty one thousand people in the state of north dakota it will do so by transferring an average point zero one thirty six million acre feet of water which amounts to less than two one hundred seven percent of the mercenary river main stem systems total capacity from the missouri river bas state's argument that the standing there standing is self evident and they have no need to raise this issue for the district court that is flatly wrong it is a play just burton in every case regardless of whether their standing is challenged to any injury to a proprietary interest and not allege that they own land that would be harmed by this it's the only thing that is alleged when we challenge their standing and we would direct the court  xscape sixty two which is where we challenge their standing and also to their response and join appendix seventy three and seventy four we argued as we do here that the state alleged no harm to a sovereign pass it and this court has been clear we've said in the huron case for the fact that the forfeiture rule applies to standing arguments as well as it does to merits arguments because it is not the province of this court to speculate on an injury  that the plaintiff never raised and clearly this case is unique in that this state decided made a living patient choice to pursue only this theory so they have clearly waived they forfeited the argument that they footnotes all about which is imagine that it's not a footnote to the tax it's in the body of the opinion there's a great deal of discussion about the possibility of a suit that looks like this one why doesn't that mean that what was going on in mass the u p a is there were t interpreted the decision and i think explained it very well in the center for biological diversity which we cited in our brief but certainly there you know three things are happening there the court afforded special solicitude to the state due to the fact that it was a state and as you mentioned it has the sovereign interest in its discussion that really sounds like it's talking about sovereign interest you know that the interest and its territory and also the procedural right in the clean air act petition for review and then also the injury i think what's in what's difficult and when you look at all of these cases we have found no case none of the cases they cite have dealt with a scenario in which a state asserted only  acquiring sovereign interest this is highly unusual and the only circumstantial we found that a court has dealt with it is in this center for biological diversity case where point alleged only that it was suing on behalf saying i don't know why the chief justice fixated on this because there's a proprietary interest here because right standing there would've been easy and then i would have been completely out of force of everything you're saying and this would be an open and shut case  that's how i read it that's correct judge henderson you're correct on that point and this court made that point exactly and center for biological diversity what the supreme court is finding here is that the state was seeking to assert its rights and i guess later the next sentence d i think that you know again i mean and even unpacking that and gun nests you don't need to unpack that footnote and decide exactly what it means very hard to decide because this case is distinguishable readily from massachusetts versus  because there is no interest asserted and there is no injury as you know proven true in the states sovereign or proprietary interests and so that's and you know and again we have looked at all the case i'm not sure  an interpreted it that way right so if you went on that then then then then there's a could be a separate there a standing which is based on proprietary interests and sovereign interest as distinguished from was a sovereign slash right  assertion of proprietary injury to the state you don't have that here and so this case is distinguishable easily from massachusetts versus e t a now this court does on the parents happy i question have decades of clear pre so it is a narrow exception the idea that it is just generally available in all cases is plainly inconsistent with this court's very clear law so you have and people's counsel is the only case in which this court found that there that congress had abrogated the bar on suits against the united states and of course that isn't these cases are in the context of challenges to federal compliance with the law not to challenges in federal law itself and so of course the natural gas saying the suppose it seems to me that there's another argument which is that the alternate remaster you is that there was also a parent's patra interest asserted which you agree with and that that assertion did some work for standing purposes if one were to they've identified nothing in the record in the record that supports their claim then sheree and it's that that would be you know insufficient in any case that particularly here where the record shows that this is going to have a  no case hold your honor very clearly that in your diversion there's enough two points clearly this is the supreme court has clearly rejected the argument that a procedural injury alone is enough that's a little recognized by this court in benson and also they cited you know for example some cases by florida and alabama you know suing over diversions those cases involving diversion of nearly a quarter of a reservoir storage for one but there is a finding  but certainly where i live against challenge standing is challenged at the summary judgment stage that litigant has an obligation to establish by the evidence what the injury if it is a diversion in another itself is not an injury you know court but somehow the the existence of an injunction gives them standing that has been forfeited they did not raise it properly but you know in their reply bring face looked at that one of the state state cases were standing wasn't challenge so a lot of times of course standing isn't braced for a challenge it's clearly not persuasive they've also made the point i'd like to briefly address that it would be pointless for the court to affirm because they can just on facts that existed before the original dismissal because that would undermine was the fact of the district court's judgment so i think they're they're wrong on that point as well but we certainly have made you know there are multiple points of this case with their standing very injury in and of itself is sufficient there is no case finding that this court's longstanding presson and it's very clear it's a very narrow exception and there's no reason to broaden it here massachusetts v and they did you know they did not raise injuries to sovern or proprietary interest in the district court and they pointed to their complaint which is just a bare allegation of harm to their citizens that is not explained and that isn't insufficient you please a court there seems to be some of that confusion over what a quasi sovereign interest is when the state has a quasi sovereign interest it has its own in and an interest in both the health and welfare of the citizens and in securing for their for their  s compliance with federal law so when reclamation as a short found violates need then the citizens have their own interests but the but the state also has its interest in securing for assistance compliance with federal law and on top of that the state plainly has its own interests in not having a massive diversion of water they try to understate the scope of this one in north dakota's grieving they say that this is this is necessary for their quote two way of life and that will bring water to eighty identified any any particular as in injury there their injury was entirely generalizable the only harm to the physical land that he asserted was harms the outer continental shelf which is federal lands not tribal lands from here we have asserted and in fact is understood in admitted by the other side that this will divert and billions of gallons of water every year from missouri you know through eternity essentially  the injunction argument although we did discuss it for the first time in a reply brief we stated it in response to the argument that they made in their response group trying to distinguish an address against wyoming nebraska against wyoming is a case where