wild grass oil and gas committee i would like to reserve five minutes of my time for rebuttal quick time is yours ok thank you oh while ground contends that the district court of used its discretion when it invoked a rarely used abstention doctoring to avoid completing a review that it had set in motion the issue here is whether the so council tell me what about their procedure didn't pass constitutional muster in your mind to specifically what did they not allow you to do amended complaint the sindhi record on appeal there are a number of things they weren't allowed to do they weren't provided sufficient time you know i'm not going to go through all those but but well they weren't allowed sufficient time they weren't allowed sufficient discovery and i can direct your honor to the page in the record and there are many complaint but the primary issue here is that the commission never articulated the standard on which it would or did decide that it's cooling order was just in reasonable or what terms it w consider to be relevant in the context of this large scale oil and gas development in close proximity to a residential subdivision let's oh let's break let's break got down a little bit ok so insufficient time was that out of a complaint that you could have dealt with in an appeal to state court a meaningful opportunity to be heard for purposes of the th amendment so sure the state court could've decided to do prop you know were they given it under the colorado amendment you know i get i get that i guess what i'm trying to get out is could you have received the same relief in state court during administrative appeal i mean your complaint was we didn't get enough time i guess i guess the relief you would want from that is or is for the commission to give you sufficient time right i don't mean to suggest that we're just whining that we didn't get enough time so i know i'm planning on walking through gotten what you wanted from from the federal court by going through the state process and so could you have gone to state court with an administrative appeal and say look this was you were not allowed to put on a case their case their decision was arbitrary and capricious because they didn't consider all the relevant evidence and you know it was they they didn't allow us to put on the things that we thought were important i mean could you have could the state court of appeals from the state administrative process have gotten you to the same place as they as they were for purposes of relief  no i don't believe so and he and here's why i mean that the crux of the issue here is was while greste given sufficient notice of the standard they would be applying ok so i am yes we have said while greste didn't get enough time and didn't get to you know the discovery it wanted would it be different relief the relief well grouses seeking is some clarity on what the standard is that would apply you know they're not required to go to state court to  redress for their federal civil rights a federal court a federal court can and i think it is in the knops a decision that you know vindication or challenging the constitutionality of state action the federal constitution already of state action is the province of the federal courts and that's what while grass is asking they had started this federal lawsuit it was  that basically while the commission held a hearing while grass is saying they were given sufficient they had not s and insufficient understanding of what standard the commission would be applying to to review whether the leases they were offered reasonable or what it would be considered to be relevant lease terms and how how they would determine whether there pooling order was just and reasonable d so let me interrupt for a minute what about the commission rule that specifies what they will consider doesn't that give you notice of what they're relying on well as as the state has pointed out those are mandatory factors yes there is a th casual factor you know that it has to it has to include just and reasonable terms i have not seen in either of the states brief or the intervenors brief what that term means it could mean different things for example you know what sort of a lease needs to be offered if this is going to be a large scale oil and gas development next to a busy rail yard for example in proximity to a protected opera for area near a sacred burial ground you know i think the th term is is sort of this catch all term so that the commission has the flexibility to tailor to to understand whether leases in a particular situation are reasonable it's not just the wild grass members are you know they're not that worried about whether they're going to get is sufficient royalty or not they're worried about you know our our house is going to be protected is our health going to be endangered in the young but just the kind policy considerations that burford was faced with because here while grass has asserted that they are they have been denied procedural due process they have been denied the opportunity to be meaningful heard it is a federal issue burford most burford cases don't consider federal issues there doesn't seem to be any state policy or any rule that flushes out what th term means it can't when i suggest it is there's no reason a federal court can't make this decision so council were where would you be if the commission had said ok tell us everything you want us to consider it we're going to consider it and you said well we want to know is it going to be close to our house is it going to cause error problems  to cause like a scene called by our house and you listed i don't know what all your all your terms are but you you asked about all of them they had a witness up on the stand you were able to put on your testimony in the commission say thank you ms hayes those things don't matter to us five so we're going to rule against you would use where would your case this case be if they would have done that well i probably wouldn't be right here at this moment i might be out skiing or doing ok but yeah you're raising an important point if hand the commission  provided more clarity about what what it would what it would consider to be relevant lease terms hand have become mission given and while grass members the opportunity to be heard on their concerns about health safety and vironment financial issues they would have been heard but mention is they weren't heard and according to the state's brief there's really no place for them to be heard on these issues in the entire process and so that's why they've come to the federal court to say you know maybe the federal courts should decide you know in this situation did this process comply with the federal constitution or were we given the opportunity to be meaningfully heard did the commission what standards it would be using so that we could address those standards at the hearing and it's while grouses hand they've done what you're suggesting judge carson yeah i probably wouldn't be here today ok so let's let's talk about i mean you did have an opportunity to be heard at least on some things you were dissipated in a hearing and put on three witnesses and a certain amount or an hour's worth of testimony i think i recall from the record two witnesses two witnesses ok and at the end i think you said i've not had enough time and they said ok how much more time do you need yeah well i know i just i mean you're because because it all becomes complicated because you want then it's well no more today because i'm not ready to put on anyone else today you had to tell me an advance i guess what i'm wondering is under that catch all provision if maybe it was your burden to say what you wanted to say and they got to decide whether what you said meant something to them or influenced the result your question well i mean you want them to tell you ok these are the things that are going to be important to us in making our decision and you say if they don't tell you that it's a due process seven violation and i'm just suggesting maybe as a little against it could be your position your job to put on your case in an effort to advocate and convince them that what you say important are important lease terms that they should consider share it ok and fair enough well dressed before the hearing ask for a minimum of three hours but but you know suggested that it could take much longer than that like they had thousands of pages of documents to get through and shortly before the hearing they were told it's on the order four days before the hearing in a pre hearing order final order they were told they would and hour and fifteen minutes and so then you have to tailor i mean i've got fifteen minutes here i can't you know prepare for three hours before you all and then you know i'm told i have fifteen minutes and i know you have more time well i haven't prepared for three hours i prepared for fifteen minutes i know you'd like to hear from me for three hours but i've got fifteen minutes and i'm going to try to tailor what i say to that time and if that's the end of it you tell me about myspace you've got another two hours keep going i'm really not prepared to do that so it state law arguments that protection of public health the environment foreign operators financial status are relevant considerations in cool and though their arguments were also disrupt the commission and the colorado legislators efforts to establish  application of the burford abstention doctrine to this case we just had a lot of discussion about the merits but the issue presented to this court is narrow and that is whether judge jackson err in dismissing appellants procedural due process claim state law and policy questions raised by the appellants were best left to the states to resolve and it really good example of this is appellants arguments and the guards rule five hundred and thirty that is the rule that provides the five factors the commission should consider protested the commission must examine the lease terms offered to the protesting minimum to determine they were no less favorable than terms of leases in the prevailing area will five hundred and thirty dollars that provides that in making that specific determination the commission will consider for specifically stern and any other lease terms that are relevant relevant to the determination of was the offered lease  less favorable than the leases in the prevailing area the rule is clear and provides die appellants argument is that it was denied due process because the commission did not allow all of its requests the discovery or presentation of potential impacts to public health and the environment history of accidents or operators financial condition that relies on the assumption that these are relevant considerations cool that is a state law question what are relevant considerations in pooling and this case also this state law question also goes far beyond just this case because it goes to how the commission reviews all pooling applications finally this specific question is not one that a state court in colorado has addressed yet whether or not those are relevant factors all of these go to the rd element of erfurt abstention state law questions that transcend the case  the state court is available through colorado's a p a to provide all of the relief that while grass request to what extent does burford extension require an exhaustion of state case the appellant has failed to utilize not necessarily exhaust but utilize these remedies thank you in the case but i think  public service case i am then why is it your case as simple as saying one there are difficult questions to state law to be exercised very review of the question is a case would be is the cases that might appear to be simple get overly complicated by the arguments that are so far in the ether that  all right just to make it a point here i understand i will do my best to simplify there is also appellant what's appellants are requesting is really a entire change wholesale change to the commissions the court disrupt what is a comprehensive and complex state regulatory process thank you good morning your honor sir please the court my name is me let me ask you this question about give me a case where a court has used burbridge to ensure to abstain from a federal procedural due process rico it was really a claim with the credit state law question and the court went into great detail on why not addressing that aspect of it in other words precluding from all cases involving some type of federal claim would allow parties to enter into federal court and disrupt the state court system according to opponents own view of what that factor in rule forty eight dollars and opponents continued it was not allowed to tying discovery to present evidence issues and look at record lows or history of accidents financial condition of extraction is that a situation where they could have been addressed those to the commission when somebody was wanting an a p b or getting permission to drill yes your honor so i don't mention earlier there are there's kind of three that miss hayes's is arguing about a subset of goals that is to say if i had a house or superbly nice neighborhood i might be a little bit in the state administrative agencies d are there to err and hear those concerns it's so from your perspective under what scenario would you difference in the fact that in that case there was no statute or rules that terminating or helping guide the hypos condition on what was just the reasonable but in a situation where there is a clear was the court's probably aware this isn't an ally case the court actually said this was a close case on the mass of the elder inspectors and situations like that where there is no guidance whatsoever then there are procedural due process considerations that don't deve into state law and the commission's regulatory processes but that's not the case we have here let me ask you this mr hayes argues that to pursue state nominees would have been futile and they know that it would have been futile because they brought previous actions in state court against the permit ing in during the permanent say that and their arguments were reject could as under the current a p a appeal the pool in order just like any other stage of the process to colorado state court specifically denver district court and then on top of that this raising is an issue that is not really supposed to be before this court goes to the heart of what this is really about and so their argument that this is a the trial exercise is based off of what the state is sayin raise environmental health and safety concerns in a pooling order hearing that's in their brief it's in my brief where it cited and i would just again even knoxy says that federal courts are the assert both substantive and procedural due process but this appeal is just procedural due process your honor i just wanted to make sure as i got out of the ether that i got the case right so ye counsel my colleagues do as well cases submitted counselor excused