appellants i'd like to reserve if possible two minutes for a bottle they view the district court dismissed this case on standing ground so it did not reach the government's motions to dismiss for failure to state a claim  are asking both of this court to reverse the dismissal as to standing and also to rule that the government's twelve b six motions should be denied as well i want to begin by clarifying that the ranchers understand their rights are junior to the tribes rights and that they don't seek to diminish or take the tribes rights rather they are seeking to vindicate certain important procedural principles procedural rights which ensure that when the government exercises its power and especially when it exercises power in a manner that has significant impacts on the environment that it bear some modicum of political accountability and that the proper decision makers in place to make those final decision for us to establish standing on a procedural injury claim like this all all all that needs to be shown is that if the procedural error were corrected then the government might reach a different decision one that could alleviate the harms done to the appellants you got the united states filed these water rights claims it litigated the claims in the klamath basin education and it lends its requisite concurrence to calls placed on the water to effectuate the claims you want to discuss in your honor there addressability here as we see it is that you know if these procedural errors are corrected then someone in the government is taking a hard look at the serious environmental harms that are being yesterday or the tribes could continue to make calls but you know where the rubber meets the road here is that the oregon water resources department they are the ones who issued the shutoffs that lead to plaintiffs undisputed injuries and  as a matter of fact and as a matter of oregon state law they don't infection waive those claims without having some concurrence from from the united states government and you can you can see that in the in the e mails uires us to agree that under our get law there is a concurrence requirement well i don't think it requires that your honor because i think the alternative trooped to rule in our favor is that united states has position as as manager of the trust assets the department of interior is and b i e s position as as the entities with which congress has charged the management of indian affairs also places them in the final decision making role so mister pearson i think that that is a question which i'm quite interested in what i think a lot of whether there is causation in traceability here depends on the nature of the trust relationship between the government and and the tribes and so i guess i to understand i think so the restoration act right when it restores that relationship you know what type of trust relationship was established by the restoration that you know the government says it was a limited trust you know the rancher suggest it's something more than that you know what is the evidence from the statute that there was a broader trust relationship created between the government and the tribes and i guess what evidence is there and then what is the content of that trust relationship i think your honor the government does appoint point two cases like the mitchell case from the u s supreme court that it's a limited trust when you look at the decisions discussing limited trusts the manner in which they're limited is that they don't limit the authority of the trustee rather they in some cases limit you know the the ability of the trust beneficiary to to enforce certain things against the trust and the cases that we have cases discussing both the trust a manage the trust relationship generally cases like the white mountain apache case and the shoni bannock case in the m cases itself suggest that the tribes cannot you know force the government to take some action unless congress has empowered them to do so the opposite is the case it's the government that manages these trusts assets and specifically with regard to me we cite several cases and i reply briefly page twenty seven dollars a search of the stand up for california case the instant case and the many goads case in which the th circuit says you know the duties and responsibilities of the secretary may conflict with the interests of the tribes but the secretary must act in accord with the obligation imposed by me but so what is it though you said the government has to manage the trust assets right but you agree that the tribes are the beneficial owners of those water rights so what is the government's obligation with respect to managing those water right the government has several obligations and they may conflict and so there may be a balancing necessary for example the very klamath treaty from which these water rights derive also has as an essential purpose the promotion of agriculture and it's not necessarily the case in every instance that you know merely because the tribes have been granted a ceiling on the on the water rights to satisfy their fishing interests  necessarily the case that those rights have to be exercised the fullest extent in every instance and it's quite possible that that you know doing so taking the full d level of in stream flow in every instance frustrates one of the essential purposes of the climate treaty which is to promote agriculture and i'd also point you to the to the memos from the office of legal counsel that we cite in our briefs which yes that where there are such competing considerations including considerations of the interests of indian tribes and of you know citizens generally and environmental interests as as congress has charged the government with taking care of with me that the government has to arrive at a unified position and so some balancing may be necessary in order to effectuate the dual purposes of the climate treaty act i guess the question is and i thought this is what was getting at if hypothetically we dealing the state of arizona that wanted to put dams up so that the flow of water to your clients would be adversely affected where does the restoration act give the united states any authority to balance as arizona's interests its own agriculture versus your client's interest other then through the political process well the nature of the trust relationship doesn't really derive i don't think from the restoration act but rather from the climate treaty itself and that is that's the you know i want to thank there is a qualification in the treaty to the tribes aboriginal rights i mean the treaty was very specific as to what was reserved and what was not well i think that's right i think it reserved hunting and fishing rights and it also was designed to promote agriculture and it's plausible that the tribes could take a less then the full in stream flows awarded to them and still you know have enough water to preserve their fishing rights while also preserving the possibility of sustainable agriculture in the upper klamath basin community generally and the bureau of indian affairs it's conceivable but the question is where does the right to rise in the united states as you're arguing to limit what the treaty otherwise preserves the united states as strict as manager of the trust s s is is the entity that makes important management decisions about the trust and i'll point you again to the cases that at page twenty seven of our reply brief you know it's not unusual for the bureau of indian affairs to perform analyse us before it makes the sun sure sure but i guess that's why i asked you and i gather you acknowledge that there is no concurrence obligation that affects the tribe under state law and so you're relying on the treaty and the treaties promotion of agriculture your honor i'm sorry if i wasn't clear i'm speaking about the treaty because i took that to be you know the substance of judge rouse question about the nature of the federal indian trust relationship but no actually very importantly here there is the requirement in oregon that as a matter of fact and to the extent that the question is a factual question i think we were entitled to a presumption in our favor on that issue in this stage litigations matter of fact oregon water resources department does not issue these shutoffs unless they've gotten concurrence from the b i a and in those e mails of page sixty two and sixty three of the appendix the department does not even take take the no your honor i think those e mails reveal the practice what but i also think that as a matter of oregon state administrative law to which to which the administration of these water rights are subject because of the  cases like the for the noite case that we cite the climate irrigation district case suggest that as a matter of law in oregon it has to be the legal owner who goes to the water resource department  so it is it is both a leap it is both him as a matter of fact and a matter of law the shut off just don't happen unless b i a can curse so both mccarron amendment and the restoration indicate neither is affecting the tribes rights under the treaty is that correct i'm not sure i understand your question especially why don't you understand about it well so the mccarran amendment subjects the administration of the water rights to state law that's the ruling of the united states supreme court in the colorado river case i united states can be joined as a party yet so that the text of the mccarran amendment may not be completely clear on this matter but the united states has decided in its colorado river case that the effect the protocol is a problem because the government is delegating not only its ability to concur but also whatever whatever other discretionary fiduciary obligations it has over the  of these trust assets and it didn't authorize them to sub delegate that federal authority beyond the boundaries of those departments furthermore congress passed nita which said that when when the government when executive agencies are making decisions that have such fillets serious effects on the human environment and here there's a state of environmental crisis in the upper climate basin community that have to at the very least take those considerations into account at no point in this process from the buy a ling of the claims to litigation of the claims to to the concurrence if the united states ever made to to consider the environmental effects even though that's precisely what and eighty six restoration act wouldn't it have been obvious that the tribes owned and had a unilateral right to assert water rights your honor i don't know if that may seem obvious as a matter of federal law i do not know how the oregon water resources department how could it how could it not be i mean the  right is reserved the trust relationship is extinguished and yet the extinguishing act explicitly says this has no impact on the reserve right in the absence of that trust relationship you know then yes i suppose the i am would not be required to make the management ok ok so now we throw into the mix the restoration act which re establishes a trust relationship which might tend to help you would which might at least set up the question of what's the nature of that trust but the restoration act very specifically says that nothing in that statu shall affect in any manner any fishing or water right of the tribe or its members so if they have the right if they could have unilaterally asserted their water rights before the restoration act seems pretty obvious they can do the same thing after the restoration act because there's a very specific clause addressing that question your honor i disagree i think that that causes better read to be talking about the substance of the rights and it's true that about the substance of the right is changed but the mccarran amendment as i said subject the administration of the rights to oregon state law and again you know leaving federal law aside i think it's key here that at the end of the day it is the oregon water resource department who who is issuing these call and they don't do so without the i a s concurrence if if well but we can't leave federal law aside to the extent it is supreme being your argument about what the status doing only works if as a matter of federal law the ownership of the water rights is a question of administration under mccarran rather down within the scope of this reservation of in the restoration act while you're here i also think that i don't think that the united states government could could force the oregon administrative apparatus to to implement its its regulatory programs that that i think would be a violation of the th amendment it would be a  commandeering issue and for the purposes of standing and you know causation and redress ability it is the oregon water resources department that the showing the shots and they don't do so without the eyes concurren your honor i think if you if you look at at the government's brief they move away from from the issue of concurrence a little bit towards the issue of discretion and i think that's because of the  strength of the arguments that that the concurrence is required you can also by the way look at the protocol itself which i think is the government's biggest hurdle in trying to make both the arguments about concurrence and discretion the protocol itself discusses a you know in exact terms required concurrence and the protocol also requires that when the when the tribes want to make a call they have to submit their proposal to the with the reasons why they want to make the call the bureau of indian affairs then the liberates over whether or not they will agree disagree or or want to change the scope of those calls and the united states actually has the the right in the protocol unilaterally to make the call even over tribal objections the very provision that the ranchers are challenging here but the more important point is to try bridge eans it's it's independent right to make a indian affairs and get to the question me we can take that as a matter of fact yes i think so and based on the e mails and i think also that we make the argument that it's a matter of oregon administrative law in cases like the fort benoit case if you're not convinced on the on the legal question perhaps it's an issue for certification to the organ state courts but for the purposes of standing  causation where the rubber meets the road is it the oregon water resources department and they don't issue the shutoffs excuse me they they do not issue the shutoffs unless they have some some concurrence from the bureau of indian your honor i'm not sure what what about real property does the statute say that you're trying to ask about well i mean for instance well i mean they talks about real property in a number of contacts and i believe there are some supreme court decisions suggesting that water water rights are included with real property rights yes i think i think yes i think it's fair to characterize it as real property although i'd also point out that there are a special form of property  particularly in the western united states where they have the system of prior procreation rather than you know a person in water rights so i guess i mean under if any putting aside the oregon state law requirements mean what is your strongest argument that under federal law the the government maintains the right to manage this water even though the water rights are held by the tribes what are the cases or case in all of which the court spoke of the affirmative obligation of the united states to make to manage the trust assets in the manner that it believes appropriate and that the tribes could not strong arm the united states as trustee into making the decision that that the tribes prefer and furthermore specifically with respect to nepa there are those cases that at page twenty seven dollars of the reply brief including the many goads case in which the t circuit said again you know the interests of the government underneath them may conflict with the interests of the tribes and the government still must follow the strictures of me but i'd also point out that congress you know charged the department of interior and the bureau of indian affairs with the management of indian affairs and when it comes to management decisions that have such serious environmental impact those certainly seem to be the type of major decisions which which congress has placed in the i a e a and interior and which congress has not permitted to be delegated beyond the bounds of those  honor i do i think that's the ruling from i have c c v telecom or rather from the from the us telecom case from this court as regards the general non delegation argument and then you know i think that the  the notion that when it comes to considerations it must be the government that makes the consideration certainly can and should incorporate you know the tribes is position as it is an element of their decision making and certainly the tribes are in a good position to know or to have a good information about what level of in stream flows will be necessary in a given instance but no your honor they cannot wholesale delegate that decision making authority and that's all that the ranchers are seeking here again at no point has the government been made to consider the serious environmental crisis that they're facing and all they ask is that somebody who is politically accountable to them somebody in the government be the one who's finally making these decisions and that the government not pass the buck on to the tribes as it were federal law the climate tribes are a sovereign entity with the power and authority to exercising control their own water rights in the protocol agreement the tribes agreed to consultation in coordination with  train the government and the tribes here right what is the what is the government's obligations our rights and responsibilities as trustee for these water rights or just round and this is a classic case of a limited trust these are real property rights that the trunks reserved unto themselves and which were reserved for them in the eight hundred and sixty four treaty and the united states government and united states law recognizes the tribes as sovereign have a trust obligation under federal law there has to be a statute imposed probably also so why in your view does the restoration act not impose a broader trust obligation you just restores the termination act in ninety four the tribes went to court the rd there are rights the circuit determined that they have full control over those rights and those rights existed so there's no question about that and the eighty six restoration act that it wasn't going to impact preexisting rights well but the thing is i think you know so the adair case from the th circuit right has decided in between these two times when there is no trust relationship between the government and the tribes and so it seems to me that the language of that case talking about control is all in the context of there not being a trustee relationship and so i think you know we have to look at you know what type of control might have points because under federal law the property rights of the tribes are theirs to control an exercise that's the only exception to that is when congress steps and provides a specific management economic development does that give does that give the government some greater role as a trustee i don't believe it is will be sufficiently specific authorities over its own water rights i just think that i think that you're answering a different question from the one that i'm asking it doesn't seem to me necessarily true that because they have their a sovereign and because they have property rights that that means the government doesn't also have some obligation as a trustee to exercise some fiduciary control over how the tribes exercise those rights and so i want to understand why the are cases where there are statutes and regulations that require the government specifically to manage him or resource in that context then of course the tribes foreign control over his own timber resources are reduced to some extent and they get the government has  have unilateral control over their water rights it still seems that the oregon state agency has taken a different position and we can't have to review or reverse their decision so for standing purposes don't we have to take as a given that their understanding of the law he even if we think it's wrong the government needs to concur in the call in order for the water right to be enforced your honor i don't think so because there's been no formal legal determination also let me address the the notion that the fact is i'm sorry the notion that i didn't say that it's a factual is right that was that for which you know this court the st some for factual from an age it's not a fact she was a legal issue as to whether there's a concurrence requirement and so what we submit the court is there is no concurrence requirement under federal law spose i also agree with you that it's a legal question rather than backlashing we we still having dishes from the oregon agency tending to show that right rightly or wrongly they they think it's a legal matter that concurrence is required short but if this court were to affirm what is the law which is there is the earth for me i had no expectation that the the oregon state officials would disagree with the dozen of this court and even if it for some reason they were and that doesn't change the legal causation that's required both for standing and specifically for standing as injury in fact and even if we were completely right in our conviction that the tribe unilaterally controls these rights and even if the state agency were completely wrong in its conviction to the contrary as a matter of fact there issu beneficiary in a context where there is no suggestion or possibility of a violation of a fiduciary trust providing ever read revokable assignment of a property rights to the beneficiary judgments in water rights cases and you know this on its face that exemption applies to what is happening here and what what the court has to keep in mind with respect to that exemption those flows remain in the water and the junior water users planets or others are unable to take water out of that system and so that's simply maintaining the status quo and falls  this case which is challenging the protocol amendment probably the st thing you look at is the protocol the protocol itself which speaks of required concurrence the very very provision that the ranchers are challenging is one in which the government promises not to withhold required concurrence and i don't think i think the implication is quite clear that that it's concurrence would be required at least and in some circumstances and furthermore that absent such a promise it may have reason to disagree with the tribe decision to place a call or even just the scope of a call in a given case and that it may actually withhold such concurrence and as far as competing obligations specific competing obligations of the united states in terms of interest that it has to balance again the climate treaty from which the water rights arrive in which created the t frustrate that purpose of promoting agriculture although i'll admit frankly it's somewhat hard to say again because the government is avoiding its obligations underneath but to consider those effects and with the rancher succeed in this case all they're trying to do is to restore some measure of political accountability where there currently is not and again at no point in this process was the government made to consider the serious environmental harm being done to the ranchers and to the upper klamath basin agricultural community generally and it's perhaps the need analysis reveals d that the tribes should get precisely what they ask for but i think the fair implications from our from the allegations that are in our pleading is that some balancing may be appropriate and that the united states could in fact arrive at a position that preserves enough water for the tribes to have their fishing rights a while still permitting sustainable agriculture in the region thank you council take the case