you rational charter and there's no question that the twin bridge is not going to interfere with navigation because it's virtually at the same site that that's the end of the authorisation that the coast guard had yes judge rogers it that that is the the purpose is navigation there is no navigational issue we should have the perm so the way i read your brief is that basically the coast guard's been holding this up for ten years but you would agree that there have been certain things beyond the coastguards control that have held us up namely the city of detroit so once you resolve that and i gather that is in the process i'm about to be resolved but your position is literally that the regulation last judge rogers i think our first position would be that there is no possible reasonable reading of the plain text of that regulation that could require property ownership to show necessary primary authority about the last sentence your honor has to be read in the context of both the statute and the regulation in which it is found that last sentence says care should be taken not to issue a permit when there is doubt about the right of the applicant that is referring to the rock and utilize yes your honor i absolutely understand that i'm the last sentence is referring to whether there is doubt about any of the things that that regulation has listed as ways to show primary thirty if there is a doubt about the applicant's primary authority it says then care should be taken but they really think the following context judge rogers which was not fully ventilated and i briefs is critical to understanding that last sentence that regulation there are number of points i wish to make about that regulation but primary authority is generally legislative authorization to build the bridge and there are four points about primary authority that i think if this court address says it is impossible literally impossible to affirm a lower court decision those four points very briefly are first both the statute and the regulations recognized that primary authority is either state or federal it's written language about inherent in the ownership that it judge edwards that is an alternative very clearly in the plain text of that regulation that is a last resort resort alternative way if you have nothing else if there is where the regulation reads the judge edwards i don't i don't understand your argument that once you have the federal approval that's the end of the case there's nothing in the statute or the regulation that would you any intelligent reader in first reach the conclusion that's just the starting point there are a number of other things that have to be finished or the coast court will give you a permit including even the statute use the word property and the regulation itself doesn't say anything about if you have that or all approval you're done it talks about you don't have the state so now you're into regulation one one five zero five the regulation that there honors referring to it is impossible to read it as giving you as defining it's impossible to read regulation one one five zero five and defining necessary primary authority for an international bridge impossible there is nothing in that regulation that could give you primary authority to build an international bridge unless you accept our definition of charter which includes a federal statute in which case we win the case because we satisfy the regulation the regulation if you have a state license to build a bridge the regulation makes crystal clear you do not need primary authority you do not need reject if you reject our view of charter as a federal statute as a grant of rights that simply confirms that there is no way to read regulation one one five zero five as defining what necessary primary authority is for an international bridge none of the things listed there you could have one of them you could have all of them none of them could allow you to build an international bridge you must have congressional authorization to build an international bridge  issue have the property swap now right you have a property swap with the droid we now have of city council approval for a property swap with them you have the air right now right yes or on i don't think the deal has technically closed but we have the agreement with city council approval you acknowledge that the agency has to check the environmental issues before issues a permit right we will yes but we would submit that they have done so and so when they issued a fonzie after public hearings in two thousand and nine which you change the design the design we are not the design that we are seeking approval of today in the use actually the same as what we knew going back to the old design because not have an opportunity to look again to be sure you are the one who's which you are the one you conveniently started your argument and you did this in the brief two and it's really kind of astonishing you're the one who asked that this be held in abeyance you're the one who put this off track you are the one who implicitly implicitly acknowledged that you did not have what you needed because you first assumed you had property rights and then it turned out you didn't and you said to the agency hold in advance and now everything's off track and now you're angry but that was your doing judge others thanks for asking the question because it's a point we didn't address in our replies like an address and now the letter that the government cited to where we said oh hold it in the bands they do cite to it but they didn't make an argument out of it and then even your argument exactly so thank you and they are in the argument that we did not say hold it in abeyance because we didn't have the property we said hold i advance because we thought and i think we immediately changed our mind and there was a confusion over it that the need for process need to be separated the need to process the environmental process from the permanent process but it didn't have to do with the property owners holden bans within a month of that and i hope my colleagues may be to give me the citation the coastguard recognize that that request to hold in abeyance had been rescinded so this is a confused back and forth that becomes argument on that he did mention it in their fact statement within a very short period of time the coast guard recognized that there was that the letter saying her request to hold no bans was rescind it and was taken off the table so we were proceeding and then they rejected the application you know so so you're saying the the in your view the only thing that's you saying there's no environmental issue left to be considered we are saying that your honor th district court except that i think the district court did accept that because judge collier i don't understand it the discotheques of that that then there would be nothing left because you have the swap i didn't think the well doesn't mean it was right or wrong but i'm just sorry the district court said that the sole issue for the rejection of our application was our failure to obtain the property not the fog and she actually pushed environmental so i have their view can i ask you about the statute as to church or go i don't see anything in the statute that says a statute being section for ninety one that resolves this case in the direction you're asking us to resolve it with some ellipses it says when authority is granted by congress such bridge shall not be bridge built until the secretary shall approve such plants and the location of such bridge period those are the key words that strike now that maybe some people might say an over delegation that's a delegation without limitation it doesn't in any way tell the secretary what the secretary has to does except look at the location and i don't see why what they've done here isn't looking at the location and saying oh look you want to build a bridge in a place where you don't have the property rights in the beginning it and then the land rights later you didn't have the air rights is there anything in the words of this statute which supports your proposition i believe there is you're on i do understand a question to judge garland i would start with start with four ninety one where your honor started that cetera et cetera but that's all fine that's their summation but you can't build until the secretary approved those plans or specifications and the location yes so that's right and we're not asking that such map and such drawings are necessary it says and there those are the things that was a the required for a full understanding of the subject in the secretary's position is full understanding of the subject includes by the way do you own the land that's necessary for somebody to step on of that bridge just maybe i just need to just complete the point because the proposition is that we're submitting to a lot of the proposition that i am submitting to the court that it's very specific what must be submitted for that full understanding plans and specifications maps and drawings not ownership so they are an ing something that must be submitted that's the first point they're not adding they're not necessarily adding you could say they're not adding that but the secretary has a right to a proof and it doesn't say on what grounds just says it can approve the secretary has to approve the location before you can build then you go at least agree this is ambiguous you think this is chris i don't actually think it's ambiguous what i would concede is that there isn't a clear statement somewhere in the statute that says once this happens the agency shall muster that bausch out but i think the think the statute when you read it carefully is very clear on what must be submitted and doesn't say or anything else you might need secondly iran are two more points if i may statute does make clear in section four ninety four that the key thing is make sure doesn't mess up navigation that that that's a section for two three u s c four ninety four that is certainly one thing without them you lose because those statute itself doesn't get you there and i wouldn't i wouldn't say that your honor because i don't think there's anything i don't think you could reasonably interpret the statute to authorize the agency to impose ad additional requirements sometimes but not always and it's crystal clear they do not always require proud now that not even some private our not even talking about now talk about practice now we're not talking about a statute or the regulations you're saying that in the past they a look at location definitely it requires a look at location i do wish to be very clear that the submission we made is very precise on location in fact the location was determined in one nine hundred twenty seven by the original bridge was very precise the location of the twin span and the permit would only be for that location we do not absolutely do not need to know about property ownership to know about location we just need to know what does the submission say we're going to build right here nowhere else and  when you read this you've got to understand how other people would look at this that seems in hardily reasonable position when the word property is in the statute and the agency says make it the worst hypothetical in the world you can think of would not only have no access everyone who has anything to say about that property is set over their dead bodies before you get there why would an agency issue a permit in that circumstance you know they would do it because it doesn't make sense there i think a few points in response it doesn't make sense to require someone to go and buy everything and invest all the money before they get their navigation clearance and approval normally you would do it the other way you would invest the money after you know there's no navigation problem with  infrastructure project secondly again i think do you think the regulations help us it is crystal clear inescapably unambiguous in the regulation of one one five zero five that if you have a state license you do not need the property you do not need the property it says or if you have nothing else then look at the property and i have to say i am i find this not only do i not find regulation not crystal clear i can barely understand it and i didn't answer and at some points used view yourself as set it seems somewhat internally and contradictory but let me let me ask let me tell you that you parts confuse me and then i want to talk about its origin so the title is necessary primary thore right it doesn't say sufficient just as necessary so even if you are one hundred percent right about what is the primary authority here at doesn't say there's nothing in the regulation that says and by the way if you have a necessary primary authority that's all you need doesn't say necessary prime i thought he plus n just just it you know my right and i have i've looked hard i haven't found a regulation that says what to do with this once you have necessary primary your honor i'm not submitting that the entire regulations are model clarity i was simply saying that one point i just i just don't want that that one point i was making to judge edwards it is clear that if you have a state license you don't need property it's illogical and this was never addressed by the district court or number of points we just were never addressed and i well you're just too much out with answering mine that you can go on and s y so so your question is it's as necessary i'm not all that but but that's my point it doesn't say all you have to first i think if you look at the words primary authority and if you look at the statute it's much more it's hundred ninety nine it has been clear from the statute building an international bridge you have to have authorization from congress you're building a domestic bridge a state interest a peerage you have to do that under the authorization of a state legislature and when you understand that distinction and when you also understand that ninety nine percent of all bridges are domestic then it makes more sense why this legist why this regulation would focus on state primary the coast guard's regulations recognize their state primary authority and there's federal primary authority they never addressed they never say what federal crime reporter at the time let me ask you some questions because they bother me and i'm sure you want to answer them for doing this so the last sentence which judge edwards referred to in the regulations as special carol be taken the federal probe will is not granted when there is doubt of the right of the applicant to construct and utilize the bridge so they say they have doubts in this case about the right to utilize the bridge isn't that consistent with their position why isn't that consist it's consistent with the position but i think it's a misreading of the regulation i don't think that's what i want to why is it i just read you the last sentence why is it the mis reading of that sentence they have doubts about the ability to utilize the bridge when you don't have the right to access the bridge because you don't own the property because it is clear from the first five you get to read that sentence that the law says the supreme court has set that you have to read a general so they statement that comes at the end of a series of specifics in light of those specifics i mean let's be clear that you don't get there with just reading the and actually reads the way the government wants it's in context it doesn't is that we're saying i'm saying it has to be read in context and it's clear in context that it's referring about doubt about one of the things listed in one one five zero five which really go beyond what the statute says the statute says you need a legislative approval from congress or if it's a domestic interest a pridgin need legislative approval from the state legislature and the regulation goes beyond that it's actually permissive  way you can have a state license maybe it's a licensing scheme or sneak approval what if you have nothing what there's no state regulation all well then maybe you show us your charter well what if you have nothing at all not even a charter ok or that says we were as an alternative as a last resort show us that you maybe you own all the land if you own all the land then that as an alternative could be a way to do it and then it says but by the way we're kind of pushing the arm elope here with all these alternative ways if it's doubtful if it's like some dubious ambiguous license or like your r says however in cases where the structure is an objection however in cases where the structures unobjectionable from the point of view of navigation but when state or local authorities decline to give their consent to the work it is not usual for the department actually to issue a permit this is for the reason that while the instrument merely expresses assent so far as concerns the public rights of navigation it practically becomes of no value in the event of opposition by state or local authority and  be regarded by such authority as an act of discourteous what about that so your honor first of all that provision is not in the current regulations was not what not in the current regulation the current right and it's what you're asking us to look at a lot of history am i looking at that for the purpose of trying to understand what the regulation means we do think the prior versions of the regulations are very helpful to us because they should explain the context of what they're talking about when they talk about forty and we would cite the court to join appendix three fifty seven and three seventy three in that regard but but on this point this regulation that they point to from the old regulations it was taken out and replaced with a sentence in one one for dot ten that said coastguard permit doesn't leave it doesn't give you any other local approvals you start to deal with any other local issues you may have was replaced with that sentence so became a friendlier regime to applicants changed it secondly even if that regulation w in from what they did here what they did here is say by the way this thing is entirely incomplete there is a necessary prerequisite to show property ownership if not with that regulation says that when actually says they would tell you basically they give you the an equivalent of a kind of conditional permanente here's a letter saying there's no navigation issue no but sorry you have this local problem until you get that sorted out you won't get the official permit that's now it's not usual for the department actually to issue a give you a conditional permit or i'm not an official permit they're just saying it's not yours we'll give it to you previous sentence makes clear that they would tell you that there's no problem with navigation they would at least give you something that would be helpful to confirm that you have no navigational issue your governmental nature or because congress had given you that that the reality is that no one would rationally do what the agency is suggesting be done here because of of the reason you gave no one would purchase this land get it all assembled make the financial commitment get whatever permits are required from the state the zoning people the air rights until you know that you have the navigation rights and we deal with a lot of statutory schemes where a federal agency does something but it says this is subject to getting permission from the state are whether it's a water rights permit or something so so what i understand your argument to be is that and the coast guard in it's a brief says this is a unique situation are in the sense that they say all their cases have involved entities that have had imminent domain authority and so they say as i understand it we don't want to waste our time going through this process if we're not certain that this bridge can actually be completed so therefore we're going to treat someone went out imminent domain authority a different way and why isn't that a rational way of looking at things  mean they can't now say that they have a rule of administrative convenience to require property ownership right up front when they didn't require it and only later and late four years into the process they say ok look unhappy game of ping pong similarly if every agency and then things addressed as chief judge collins point about the statute and some implied discretion for the agency to add requirements because it doesn't have a valid shout innit if every agency c yeah this is what the thing says you need to give us but we want a little bit more we want this we want that we reserve the right to ask for other things including other approvals than any administrative process you have where you need multiple approvals every agency could by implicit authority by implicit authority in a silent statute like four ninety one say we're going to hold off until you get it from that agency and that engine is going to hold off until you get from this agency you never get anywhere i mean it's the definition of a bureaucratic quagmire so i think that is by definition irrational good morning your honor has made it please the court vivian won for the u s coast guard before turning to the heart of the statutory regulatory interpretation issues i wanted to briefly note that the final approval for the land swap between the city of detroit and the bridge company are grants all of its approvals to this land while the agency will still have to do some further environmental review that's correct your honor the coast guard under its  saying you know here is the information that we submitted before please ensure that you don't need the show information and if you need additional information we will ensure the bridge company sent that to you and so coastguard needs to ascertain that i if they delay and we will against them they lose the authority forever that they claim here if they grant the permit right away they might with this case you're going to make that decision but has given that your inability to tell us when no reason for us to not go forward is there any reason for us not to go forward while your honor as as we suggested in our motion previously made to this court we that it is something that we wish to bring to the court's attention is the question bill this valley cost them money to not having it built so they have a reason to move forward quickly if we took the government's position that we're just going to wait whenever the government wants us to wait with and we may never get a result there's no case that says that we can put off a petition errors right to a hearing in this court because the government says some day somehow some moment eventuality don't worry about it we will rule and maybe in their direction if the court were inclined to let the coast guard process play out what of course but be ready to provide the court with regular updates as to the status of process but i understand your honor is concerned and i think that  at the court does wish to proceed with the case i think that a firm and says the proper result here is the bridge company's interpretation of the statute another regulation conflates congressional consent to building a bridge with construction and completion there of normally three years for the spot of construction why wouldn't a reasonable interpretation of these regulations be that you all things considered they get the permit conditional and they wanted to the judges question is yes is that correct because in the blue brief they make that assertion and in the read brief you don't dispute it it is it is my understanding that there are no particular not occasion issues flag that's touchstone here is the language of one fifteen zero five in which the coast guard sets forth pretty clearly that what a prerequisite is that the applicant demonstrate that it possesses the necessary primary authority  and for a primary sorting means once again it means that apart from issues of congressional consent the applicant has to demonstrate that it is it possesses the ability and the from a constituted state agency a copy of such license or approval may be accepted as evidence of the primary authority so that doesn't say anything about the property at that stage  license or approval by the state may be evidence of primaries or in your honor and i think the maybe as part of the language that we should note here and don't the way this one fifteen zero five is laid out it provides that for for example a state or municipal entity or a publically charter corporation for instance the coast guard will in those circumstances presume without proof the primary already in the underlying logic for that  goes a bit back to judge roger's colloquy with opposing counsel is the question of whether the entity constructing the bridge has among others or authority the authority of eminent domain and the state had indicated somehow that you know it was not inclined to exercise that authority by the state your own or carry not the power of imminent domain yes your  i think that that would be an issue that based on the record in that hypothetical scenario that would be something that the coast i would have to take into consideration and hear what we have is a private entity that does not house such power and that is not am the second sentence i think such as apply to private enterprises the second sentence if this is a bridge were if a private enterprise where the people constructing a bridge on the basis of state authority state granted authority i think that is a circumstance in which that sentence may come into play but in this case what we're looking at is whether the necessary primary already may be that granted in the charter or the what the authority inherent in the because the bridge company here has the for the only paper that has before the court in terms of its proof of this necessary primary already is this is the authority granted by congress in the  instructing ambassador break to not imagine that the state of michigan likes their plan and they want the bridge built and they and they give their license and approval but they still don't own the land you've got a congressional approval and you got the state approval but they haven't bought the land yet and in your honour's hypothetical the entity it still remains a private and it does not buy it's a bridge company they've got this and they've gotten the approval from congress and  gotten approval from the state and there's no fight with detroit it's just they haven't yet bought the land from some private party maybe that controls the access route now this says a copy of such license or approval that is the license for approval from the think that there's something else besides but there's most provision of the regulation that says what's sufficient that the problem is your honor and i think i do think that the regulation does not by itself provide some sort of a laundry list or  exact criteria and i think this is because in all of these circumstances the applicant is coming to the coast guard as either a public or private entity with different sets of circumstances and the coast guard a with any agency making a determination based on the record before it has to take into account and factor in its decision making with all of these criteria such a thing as primary authority there must be something called secondary authority what's the second are authorities here agency to itself to rest assure itself that the necessary rights and the necessary that the applicant possesses the necessary rights to move forward what's the answer to their general in this wreck and under regulatory schemes in which there is inherently some uncertainty as to whether all of the necessary permits from all of the necessary federal state municipal international authorities for years and it's concerns and we are suggesting to you this is where we're going to handle whatever concerns you might have of our property why would you issue a conditional why should they expend all the time and money when you're only willing to sort of fo at issue here is inherently a matter of of agency discretion to conduct its to carry out its mission and its operations well let's suggest that the issue is whether the applicant has notice notice what is required pressure on are concerned about the uncertainty i think that the answer is that as a practical matter these applications don't proceed in some sort of black box the company the applicant in any scenario and the coast guard is in constant dialogue  figure out what what the next steps are and i think in all of that context the applicant as any other business person then makes informed business decisions on how to proceed with respect to the  that property rights over riverside park would be acquired in that the city had no intent on selling either the land or necessary easement at that point the coast guard went back to the bridge company and said the seems to be a pretty fun go back to the language one fifteen zero five and i think that regulation makes very clear that the applicant in certain circumstances may be required to furnish a statement of ownership in the final sentence again states a special care will be taken a federal approval is not granted where there is doubt of the right of the applicant to construct and utilize this bridge this language cracks the one nine hundred forty six regulation issued by the war department which made clear that navigation is not the only thing that the  earth hypothetical scenario where the coast guard should just go ahead and grant the permit without knowing these things it will conditionally grant a permit i think but under that alternative scenario and under sort of world view there would be nothing up prevents applicants from submitting you know several serial applications without being able to demonstrate the necessary property rights and it would force the in meaningless and wasteful expenditures of resources to go through all of the review process all of the public comment process for breaks that may never be built it's been a decade if you had complied with the it's not one side or the other causing the problem they've been changes on both sides but at least under judge edward scenario it seems we're not and it's an area with the question he's acting you suggest that maybe that's more in line with what congress had in mind and that the agency had in mind when you read this regulation is talking about ninety nine percent of the cases where you're dealing with public entities that want to construct bridges now you have a situation of a private entity and you say it's a unique situation and why aren't the things that you're normally concerned about where is a public entity resolve this notion of the conditional permit which a number of other agencies use in your honor i think that the answer here is that in a case like this where the statute is not crystal clear the agency has promulgated a regulation to fill the gaps in the regulation they have so little understanding of the regulation that's right and it's not as though it says it in a separate one one five point zero five b international bridge is constructed by private parties i mean that's the problem in part here isn't it odd that respectfully your honor i disagree that that is a problem i think that it just goes to show that there are various scenarios under which the coast guard is invalidating permits and that the regular just say clearly that unless the applicant is a state or municipality that manifestly has authority the construct and utilize the bridge that's your notice right that's a notice it's being given that's correct your honor and the coast guard is not trying to hide the ball here it has been very clear all along that the issue now is the property rights issue and that is no longer at issue and now the rights is for your concern that issue and losses blows up with the troika's the air and the property that there's a property swap and the air is no longer an issue navigation has never been an issue the only issue is still dependent on final approval from the michigan department of natural resources and the national park service because it concerns certain water land conservation areas and so those approvals are outside nearly two conditions we're talking about the swap has to be formally approved and the environmental everything else for the cause go concern is done and you speculated that by the end of the year there should be over you if i got it right is that the right picture if i were to write something or one of my colleagues were right something we said look this is who we are this is where we are there's very little left would we be inaccurate there's no navigation issue the swap has to be done if it's approved and we're fine the air rights were fine and the environmental as soon as that approval comes through we're done this is over your honor the agency has as a unity as an agency  that's correct the land swap is in the final status of the profile and your honor is absolutely correct that the sort of largest final piece here that's missing is the finalization of any supplemental environmental assessment and all of the  where private owners of an international bridge do you see that do you not distinguish those cases for me or are they are the same distinctions you made in your response to brief the pluggable here as well we did make distinctions in our response brief and i would add to address some of those particular instances afferent sample what about the bridge company ok in that case mexico objected to the u s permit and it is not apparent from the face of the court's decision itself what other issues were at play when the coast guard decided to  go you don't know whether that good authority or bad authority for you those records a and they're not they're not they're not bad authority for us your honor because the records in those no you know we don't know because the records  underline the coastguards actions in those cases are not before this court and we don't know what in different circumstances the agency was considering you made an assertion in your response a brief that it always cases opening brief had cited they were distinguishable b because the applicant had the power of eminent domain now in the gray brief reply breeze by palin comes back and says not so so my question to you is who's right here are these cases covered by the same distinction you made in the red brief or are these different types of cases and i accept your point about each applicant a different but i just want to get you draw the distinction between powers of eminent domain versus a private party so now i'm cited the presidio bridge company i'm cited the central railroad company of new jersey and i thought in that case well maybe the state had given the railroad certain powers of eminent domain but i don't know and then it talks about the b c application and the agency's own statement in two thousand and six that the application was complete even though other issues at play there in the new jersey case i believe in that circumstance even if he's had approved the bridge but the state authorities were seeking to block it as for the  approval of a permit for the other border crossing the what's referred to as the i'm sorry what did you tell me about the central railroad to the new jersey central railroad of new jersey case cited is a private entity allegedly the central railroad company of new jersey and the gray brief is notwithstanding the active opposition of the state to the bridges construction on a l was not resolved until two years after the granting of the permit the coast guard is granted the premier so this notion that you have to wait until the applicant has title to the property seems to be inconsistent with the new jersey railroad your honor i'll have to say i don't believe i have those notes up and i think that in that particular circumstance the agency simply look to other authority or what that record is is just simply not before us and so we don't know what it was that the coast guard was looking at in terms of authority to assure unself you made a very broad assertion in your response and briefed by and now they have come back and said in fact that broad assertion is incorrect so i think it is before us at least to that extent and i thought well i have counsel and you'll either tell me that's the wrong they've got it wrong or in fact they  have cited some other cases and indeed in your read brief you acknowledge that this case is unique it is unique your honor it is it's not often that a entirely private entity is building an international crossing and i think that that's part of the fundamental issue here is that the not a lot of circumstances that this court can look at for comparison we do cite case your honor in our answering brief the international bridge company case versus new york which presents a similar circumstance in which the bridge company  asserted that because there was an international bridge that the state had no right to not local authorities had no right intermeddle or to block any construction in the court the supreme court in that case explained that the foundation of a right to use the land at all  situation that judge edwards was discussing with you is totally consistent with that case and totally consistent with the cases cited in  at some point the private party does have to get the land going to construct the bridge but it doesn't necessarily have to do so for coast guard issues a permit to a private party in international bridge your honor i regulations which were on the books for a long time with no congressional books now so what are they i think that they are useful in guiding this court understanding of what it is that the coast guard has the so already to look out when it is time the applicant trying to get a permit and the fact that there's no old regulations that the coast guard decided not to continue it doesn't help much does it i mean it's interesting history about the evolution of the coast guard thinking by now but the coast guard has moved on the coast guard has not moved on to the extent that i think that all of that language is still at the core language  can be cautious if someone comes in and say we plan to build here and you have a really good reasons to know there's a lot of opposition for example you could have or you will hear they they pulled out  does not say those words precisely what it does say and what it does leave the coastguard room to consider is whether it may be engaging in some listen to actual exercise if if the branch company's interpretation work to prevail that all it needs to demonstrate is navigation problems and beyond that the coast guard may not look at anything else we are present to the coast guard the agency is presented with a world in which it may be receiving dozens of applications for spy all along the detroit river and the applicant would say well we don't have to demonstrate or commit to any particle ok ssion we just want you to consider all of our dozen applications because we well figure out the property rights later on specified any particularly location along the detour along the river in detroit and so in that circumstance they could point to a more general congressional authorization to build within the municipality of detroit and say here are a dozen applications we want you to know about all of them we want you to go through public notice and comment and all of these extensive hearings and environmental analysis and that is simply an untenable position for the agency and me are you required to  that's that's correct your honor under new regulations yes your honor that the question in so in this circumstance for example some of the issues that are at play is whether the increased traffic along the twin span would lead to  air quality in shoes that would cause the reason to be out of compliance and so in that circumstance the coast guard as the federal agency undertaking in approving a major action it is under under a duty and under a duty of good governance and general to assure itself that there are no environmental concerns before proceeding so your reading of the statute is that it is permissible for the coast guard to stablish itself as the last of the end deed that has to approve before the application is approved everything else has to be done before you will grant the application but that is the branch company's characterization and we do not believe that to be accurate the coast guard is among the last the certainly not the last in the process for example because generally their army corps of engineers permits that need to be granted this will be under clean water act section four of four oftentimes because the construction of a branch may involve dredging settling an example because i gave you the example of for issuing conditional permit own action that's one that's because that pertains to the environmental review of the coastguards own action this is not really coastguard revealed other agencies actions non issue in the case your honor i don't think there can be any dispute the second sentence one one five zero five and everything after the first sentence applies to private applicants coastguard is never argued otherwise the doubt sentence the coast guard was asked about or we were asked about it counsel seems to want to reserve a lot of right to do whatever they want using the word may they say they've given us notice but the doubt sentence they have never argued and it wasn't even clear to me counsel argue that today that the doubt sentence in one one five zero five is some free standing floating requirement that has nothing to do with primary authority it is rooted in primary authority they cannot take it out of that context refer the court to the supreme court decision each versus united you in a way how desperate they are they say they have the authority congress had when they gave us our original franchise they do not so it really boils down your honor that last sentence is about primaries already so the question is what is primary authority or if you give the agency deference we don't think you fact that a state license without properties primary authority but a congressional franchise with a special agreement with canada and a states permit letter somehow isn't enough and you need more than you do when you just have a state license we also know that one one five zero five does not define necessary primary authority for an international bridge because none of the things listed in that give you congressional authorization which you need under section four zero one and four ninety one thirty three u s c four zero one three three u s c four new one oh i thought you just i thought the question wives maybe i misunderstood that you asked cancel from the coast guard does it apply to private applicants vs governmental applicants and i just want to be clear they've always said and i think it's clear from the text it applies here when you're not a state or regulation my telling us regulation doesn't even apply your honor before i leave the regulations there's no regulation that does what this does on federal primary authority but the regulation recognizes federal primary authority the application requirements not apply to you at all right we don't think it applies unless you read charter to mean what we say which one case we would have it we don't think it is addressing federal primary authority for international bridges the application requirements in one one five five do you address the what you need to show for an international bridge as does the guide as to the prior regulations they all say the same thing congressional authorization if you look please at the guides and june join appendix eleven zero one for the ninety nine guide or ten thirty four for the two thousand and eleven guide people make clear that the stuff that's been talked about in one one five zero five is for domestic bridges and then right underneath they say for international bridges is a plausible show what's your special act of congress oh and if it's after one hundred seventy two say to them then hundred seventy two act and then you need to go and tell us show is your state department approval letter so they are crystal clear what you need to show it's an international bridge as well the application requirements as well the old regulations may be a little more clear on this and i gave the myth site so i just the two pages in the joint appendix on the original regs would be three fifty seven joined appendix three fifty seven and three seventy four which we do you anything that clear i think the guide to pages i say to the court to go to an appendix eleven zero one and ten thirty four do make that clear i think those guys do make it clear as do the past practice with presidio and with our own bridge in one thousand twenty same project that had a completed on the law on the law question you already that a permit before they can grant a permit they have to approve now you're saying they should approve but you agreed on the law that they have to approve of briefing or record on the question other than your representation that they've already done it and their representation that it's different and they have to do it we can with the best you could get would be a real man on that question and then there will be will you make that argument on the nepa process has to be finished we think it's finished they don't think it's finished if i might just go back to judge roberts question the other thing about we didn't cite for this in our brief thirty three c f r one one five dock three zero is another regulation if you read it it is yet another example of a regulation that cannot have anything to do with federal primary authority and it's clearly focused only on state authority so it seems anomalous to the panel