all right before we start the clock each side has fifteen minutes but i have a question anytime i see several people setting sitting at counsel table is one person be handling all the argument or ok that you're david edwards that's all ok thank you all right thank you question about that is there anything quasi criminal about the dispute in this case not none whatsoever you go there's no way that the dune buggy writers or whatever or the point five meaning that friends challenge the decision of the coastal commission of mr aynesworth as being unlawful under state law are you saying it doesn't protect those two birds well enough but there wasn't a citation or anything else the nothing about his story that this isn't a defense or a reaction to that no so it's i mean it's kind of odd in the sense that it doesn't seem like your clients really care about the snow that may have factored into why they distort judge said you don't belong there right i would quarrel this little bit with your characterization that my client doesn't care about the bird in fact since i've represented them for years they work very closely with state parks and this location is the most successful breeding program of the plough over in the entire western well i mean are they really about is the name of their group save the birds or is to allow off road vehicle recreation i don't see why this matters why there's a motivation matter it seems like what you're saying is we're doomed buggy advocacy group this conservation effort is going to be hat that's correct your honor but there was no was there any issue regarding standing raised below at all no so what authority supports your argument that the coastal acts sixty day limitation period also governments that claim  then makes it very clear that there's a sixty day statue limitation that doesn't provide any other exception for any other type of claim and there's there's case law in california that's essentially any type of claim that you have must be brought within that sixty days so i guess so if week if we move past younger and get into the burford and the colorado river california requires that certain county judges obtain expertise  sequined related environmental laws how should that impact our analysis of whether this case satisfies the st burford factor requiring that the state has concentrated suits challenging agency actions but i don't think it should have any bearing that the standard is whether the state has focused all challenges to a particular type of administrative action in one court it's not a functional equivalent standard it's not patching together a bunch of other statutes of the fine if that's the case the question is simply like in burford as it assigned it to one court and burford all challenges to the railroad commission action in that case had to be brought in one county one  county travis county texas no other exceptions we have nothing like that in this situation so what the district court here have to if if the district court were to decide the federal and danger the speccy at claim would it have to interpret any state laws or decide in a state law issues to decide no no issues of state law come up in the federal claim the federal claim is simply one issue when mr aynesworth approved this permit did he violate section nine  california state environmental law here but do they ask for the same inquiry and whether there's critical habitat that's been affected or a threatened species that's been affected how out of those a place interplay yes so in our state actually brought habitat into the state laws that's only a federal process only the fish and wildlife service knows that pursuant to the federal dangers species act so there i would agree there's factual overlap here because we're not only on the only  on the endangered species act claim the right or is there overlap on the other two claims as well well well that i don't think there's any legal overlap there's not there's no question under any of those statutes that the federal court would have to decide before deciding the endangered species act pla sitting there's facts of overlap in the sense we're talking about the same dust control program in the same area in the same environmental impacts and so forth but we're not talking about any overlap in terms of claims so the colorado river doctrine all aus federal courts to abstain from hearing a case in deference to a pending parallel state right but if the suits are not parallel if there's a substantial doubt that the state suit will resolve all issues before the federal court then abstaining under colorado is inappropriate so can you tell me where how that fits in well i think  the error that i identified in the district court's abstention order would expect a call or a river analysis is that it's required that there be an exceptional circumstance because colorado river is the rarest of all  the district court believe that there was an exceptional circumstance and this is in the record at page one thousand of the abstention order because this in her view the state court would resolve all issues when california e s a doesn't protect one of that we're talking about here right right the plough over is not protected by any state law in this case it's only a federal interest only the federal law protects the plough or and i think what the district court was saying is because she believed th s supreme court the new orleans public service case quote colorado river does not say every time it is possible for a state court to obviate the need for federal review by deciding factual issues in a particular way the court should abstain and the court went on to say such a holding would make a mockery of the rule that only exceptional circumstances justify a federal court's refusal to decide a case in deference to the states so what the supreme court is saying and i think this court agre seventeen sinek a case is merely moving a case because you have concurrent federal state jurisdiction that's not an exceptional circumstance under colorado river that's not appropriate to invoke  because i think that the the defendants of the defendant pallies are going to bring this up that they're probably going to ask us to look at the th amendment issue and if i'm correct order basically superseded well so didn't really do delve into the merits of how this there were any reason we don't even have the permit here is there any reason that we should look at if clutched to say if we don't think it's necessary to build on that i think that the case all suggest that the court just look at the complaint and if there is an allegation that these officially state officials act in their fishel capacity and have a fairly direct connection puzzle playing out in state court with multiple lawsuits brought by the same plaintiff against six state and local government entities let me tell you my big problem with this as i read this i was thinking oh course abstentions fine middlesex middlesex i've been applying middlesex for years and that seems like pretty good abstention under middlesex but then i realize and re read sprint and it looks like sprint really changes things and boy if it isn't criminal or quasi criminal it probably just doesn't matter that the state was handling the same dispute and there was tremendous overlap of the issues and the state might resolve it and all of the middlesex factors might be satisfied it looks like all that matters is if it's criminal or quasi criminal it isn't so there  your honor sprint did narrow younger but we feel this action still fits within the narrow music younger model or quasi criminal in any way it's a civil enforcement action and sprint when i was describing what would qualify as a civil and foresman action you're correct it described  to are they going to punish anybody i thought it was just to decide whether to protect the foxes with these green strips and so forth your honor we the sprint case we feel it the concern was that a lot of cases had been courts of in of standing under younger when the underlying dispute was between private parties and so a number of the th circuit's post sprint cases where they denied younger abstention each of them had an underlying dispute those between private parties cook read sprint is that the court does not want to get and younger should not apply when the underlying dispute is basically the state resolving a dispute between private and that's not the case here this was the state taking action you would limit sprint to private parties on both sides not necessarily as we weren't isn't sprint is really about whether iowa can regulate voice phone call chargers yes but in spring your honor the when the supreme court was analyzing the procedures below it was a dispute between a national telecommunications company and a local telecommunications company over fees and there was pretty federal preemption i of the state wanted to resolve whether it's utilities commission could regulate charging by outside carrier to outside carriers for voice calls and the supreme court said it's not criminal or what i feel like that this is an alternative ground you're raising because the district court never found that this was criminal or quasi the district court found that it was a civil enforcement action that it did not where it did not maybe i'm misreading it i didn't i didn't see it as of your honor at the at the hearing at the district level that was actually much the argument was on whether it qualifies right for it in the order i don't i don't i don't see anything that talks about whether it's a civil enforcement action i then explain to me how th on its own it wasn't resulting from an underlying dispute and we contend that it was a sufficient enforcement action based on i don't know what you mean by enforcement action enforcement action means some regulatory agency says do this or else and if you don't do it you go to jail or you pay a fine who you pay something that looks like a fine but they call it something else something bad happens to you if you don't do what they say and here nothing bad was going to happen to anybody but maybe the birds in the fox that sprint did not necessarily abrogate prior th circuit precedent san remo and patro hills which indicated that a party challenging a permeating action is sufficiently foresman action or younger well but those seem to be two separate arguments whether the sprint abrogated prior th circuit precedent is a different question then is this a civil criminal enforcement action and i just there's no finding here by the district court there's no analysis of whether this was a civil action into the doesn't even cite spread so maybe deaths the argument you have to take is that sprint doesn't apply here if sprint applies you would agree that we can't look through the night the  california's to efforts to develop coherent policy with such a ruling be any more disruptive to the state's policy efforts than other federal suits challenging the decisions of state agencies i think so your honor because of the unique posture this because the mitigation measures in the environmental impact report that state parks made were insufficient to prevent take and so we think the court have to look into issues relating to the environmental impact report under seque they also allege that there are they allege in the federal claim and the state complaint that there is and it's insufficient to prevent take under the coastal axe protection of environmentally sensitive habitat area so we do think by the federal court ruling for instance if it were to rule that there was a take it would invalidate the permit this ongoing state action which is going on which is weighing seek with the coastal act various local rules the caliphate a rule that would rule based on federal it and then in the meantime there's no protection for these blowers they die they become extinct your honor i fight may just i would disagree that the law does not protect the plough over sequel it does mandate that in tax to really listed species are examined in the sequel process quote whether sufficient mitigation has occurred whether whether the environmental impact report has sufficiently address significant impacts impacts to endangered species are per se significant impact and there are cases where analyzing environmental in the way in the federal courts i mean maybe a provide some analysis of it but i just find this a little bit extreme to suggest that that the i can't imagine congress thought that it's endangered species act protection federal in danger species act we're only going to look at what the states are going to do here that's what the state's going to do yes it's felt that given that you know the base is under the three percent in doctrines and it felt that given this the state issues a federal endangered species act claim in california because california is covering it all i mean that seems to be the argument here and that's what's troubling is it doesn't seem like a federal court should just defer to a state a state proceeding in a situation like this there's all the time i magine there's hundreds of cases where there's a state environmental claim going and if federal endangered species act claim going in parallel and no one's ever thought that it's a major problem and now all of a sudden the state the federal courts differing with the state court i would think it be the reverse i think in this instance it's important to see also that this according to this day there are updates being provided to the court that it is by the way can and will jump ahead of the colorado river doctrine i don't think that a stays even appropriate the district court as i understand it under that doctrine says it's appropriate to stay when there's a parallel state actions so the federal court could retain jurors and uses it maybe and the most important word there is extraordinary colorado river abstention this extraordinary yes and we maintain that these are extraordinary circumstances just because you have parallels and just because there's a possibility that if it goes one way but not the other it may be dispositive doesn't mean there's anything extraordinary i just don't see th the state has protections for the environment and in various species the feds have protections for the environment and various species and it's just seemed nothing extraordinary that substantial doubt that the state suit will resolve all the issues before the federal court and then abstaining under colorado would be an appropriate here the state suit will moot the federal case all maner friends  lose then the federal court will likely still have to adjudicate the federal cause of action as well even if the suits were peril all the other colorado red river factors i think they would say fail to establish exceptional circumstances which have to be present when you warrant abstentions so i think that's the argument that they're making under colorado river and i think when you talk about you know various what will be settled in the state court  it is important that at least for colorado river it's not necessarily going to the claims but the issues and in their state complaint they say alleged harm to the clover all over they allege federal take insufficient mitigation that's causing harm and take to the clover they allege  you know problems under the environmental excuse me the coastal access environmentally sensitive habitat provisions and the state complaint alleges that sixty three times in mentions the clover it mentions harmed up over all throughout and so we feel state judy case the claims there it will necessarily have to address these issues with taking the plough over and then if the federal actions ongoing it would be if they would some of these issues would be precluded if they would have been tried in argued and they reproduce of in the federal court as  it would seem to me that it's not i don't know how appropriate it is to address it here when we really don't have very much information yes you're out of the district court didn't even address that appellant's were incorrect simply just did not reach the question and we believe if we don't even have the permit here right now the permit no the permit is not right up there so i mean if it's going to have to be you're going to have that th court has done a five the balance must be weighed heavily in favor of retaining federal court jurisdiction and against abstention and that's not the way that the district court approached this i don't have anything else to add i'm here to available for questions if there's anything else i can like in the courtroom i think we have other questions and there's there is nothing criminal about not using all your time all right thank you this court  court will be in recess thank you