a consent decree that was amended in two thousand and ten to purportedly authorize the e p a to issue in two thousand and thirteen a t m deal that california had stated in two thousand and twenty one last virgini hands that the court had no subject matter jurisdiction because there was no waiver of sovereign immunity and therefore should not have authorized the e p a to jump the gun by years and enter its amnio again eight years before expressly reserve the question of our ability to challenge subject matter jurisdiction through a twelve h three motion so in our view of we had brought  what the district court told us to do so i think that that in that order is clearly a final order it's a collateral order it finally discloses the issue and there's no further ability for us to act in the district court so that you know i don't believe i marriage or restriction and or rule twelve age three didn't instruct you to do that your honor at page sixteen of the court's order which is your thirty one nine the court says quote the court finds it is more subject matter jurisdiction under twelve h three by a nonparty well if you were if you were not allowed to intervene you would still be nonparty wouldn't you that is correct or ok so the intervention should have had no effect on your ability to file the twelve x three you wish to appeal to be the denial of the motion to intervene you should have appealed immediately well i think what we're trying to appeal is the court's refusal to address that subject matter jurisdiction which the court declines to address both in this order that we're looking at and in the order on the twelve on and that potentially the malvern creek area would be that we weren't your honor and here's why there's a declaration that we submitted below it said e r six fifteen through six seventeen and it discusses the evolution nitrogen phosphorus levels had already been regulated by a prior t m do you know that was incorporated into our permit that's the issue that concerned us we didn't learn that e p a was going to propose new nitrogen phosphorus levels in connection with the b alphabet soup until shortly before we moved to intervene so that you know we're actually attacked in this case both for being too late and for having no interest and i would put it to the court we can't have it both ways we waited until our interest was clear it was clear that what the e p a was doing was going to negatively affect our client and at that point they moved to intervene but the district court had its own obligation to analyze these issues and essentially what's being argued is because it's a consent decree and the parties don't want anyone to look at that he says that's just not subject to review that can't be the case it cannot be the case that my client has the right to raise this issue to bring it to the district court's attention the district court can affirmatively say i am not going to address my subject matter jurisdiction we believe there's clearly not and because there was no non discretionary duty here and that would mean the consent order is void and a clear law not voidable voided it's already in its expired and it's already everybody's can't bootstrap from any legal consent decree that is beyond the jurisdiction of the court to a t m d l by calling it timing it's not just timing and even if it is timing i posted so what's one of the constraints on  supposed to we if the state is doing it if he is supposed to wait till the state does it review the states to m d o and then if it disapproves it then it can issue its own but here here the state of california clearly stated that it was going to issue this t m deal in two honor these are complex issues these are issues that require more time to frankly make limits that are capable of being met and i remember we're a waste treatment facility you know we're not building something that we can just stop making it's it's critical that the waste treatment facility operate and the proposals the limits set by the e p a that you know the declaration before the court shows are going to cost one hundred sixty million dollars for my client employment that's not the state takes a position that it cannot and e p a when it reviews it's my understanding in my understanding is that when e p a reviews whatever the state does you know that they're supposed to be consistency that's the purpose of the team to yell but the all issued in five years or eight years or ten years doesn't exactly sound like the state is intending to do it well your honor i have to respectfully disagree with that so first off the bay keeper's case makes it clear that this constructive submission doctrine only applies where there's a total refusal to comply and issue any t m t else so we there is no constructive submission dr here that would support the a p a stepping in but i would also suggest your honor that these are more complicated issues than your questions don't work out with california ordering a phase them that reasoned approach to doing it there is no duty for the state to simply rush to file some standard and remember there already was an existing team to help cover nitrogen phosphorus so what we're really talking about actually is increasing the existing standard we're not talking about a waterway that make that decision that would be a discretionary decision not a non discretionary one and the court has no jurisdiction to have a suit against e p a for a discretionary decision because the waiver of sovereign immunity only applies to non discretionary acts so it may be the case your honor and i have to confess i just don't know it may be the case that e p a could discretionary only make that decision but that doesn't convert that into a mandatory act non discretionary discretionary duty and that is the only thing the court has jurisdiction to hear  to my knowledge so that they acquiesced on it well i don't agree with that your honor because my lack of knowledge doesn't mean the state acquiesced there's nothing in the record in this case that indicates calvin you took and is in your you're unhappy because because the consent decree forced before the process the state process where my client would have a right to participate and to argue that it was economic infeasible and to try to work with the state to engage in standards that made sense and were capable of being performed was not  and the district court was right to deny the rule twelve motion and as the court has already found there's a lot of ground cover there but there are two key facts that cut across all of these issues and can inform the court about each of them first last version is simply waited too long to participate in this case it they have already filed a notice of appeal it's currently actually in the ninth circuit's mediation program and may soon be assigned to a panel but for the purposes of this case what they're challenging is just the consent decree and vacating the consent decree will not there certainly be regulatory actions that it could take but that would not be a consent decree but when you get your dangerous thing to do with the consent decree that's right our our view is that this consent decree is over and this case is over and we follow the notice of terminations with with the district court to that i think that when the only question is whether the parties want to settle a case the court's oregon precedent says that the district court's role is simply to determine whether the settlement is fair and reasonable i think if it were obviously a case in which there was no subject matter jurisdiction then the di court's law as it existed in one thousand nine hundred eighty eight it appeared that heal the bay at least had a colorable claim but i think that the questions you're asking those were a lot really get to the timing issues in this case as well because you're right if the parties want to settle then there's no incentive for them to raise to the district court that issue and say make us litigate this issue and it doesn't serve the court's well to force two parties to litigate a question on which they agree instead the rules provide a time for other parties to come in and raise that issue to the co settled fifteen years ago being reopened to litigation before this before the courts now another reason the timing is relevant in this case is that long lapse of time has made it so that the case is moot the question of whether the consent decree is  can no longer be an appropriate subject for this court's jurisdiction because there's no relief that this court could order that would give you that would give i'm sorry the last version is any relief and on this question i really want to turn the court's attention to the eleventh circuit decision in florida wildlife federation it was a case like this one some state agencies came in and challenged the consent decree on the grounds that they didn't like the water quality standards that he set pursuant to that consent decrees deadline and the eleventh circuit said we don't have subject matter jurisdiction over this question because the water quality standards have been made you can't unring the bell is what the eleventh circuit said if you want to challenge the water quality standards you have to challenge them and not the consent decree because all the  and similarly a nonparty simply by filing a rule twenty three motion can't get an appeal rights what it needs to do is move to intervene and then if the court denies intervention as it did here immediately appeal that order even if the court allows it to participate in some right to appeal whereas here the kind of participation of the district allowed them to protect a loud last version is did not carry with it the right to appeal and as a result they needed to appeal immediately because they didn't do so they are too late to come to counsel also raise the question of whether they had adequate notice in two thousand and ten of their interest in this appeal now they may not have noticed they may not have known in twenty ten exactly what that india would have looked like in twenty thirteen but on that question this court might look at its own decision in california department of toxic substances where a party that sought to intervene late was a nod and they said well we didn't know exactly what the final settlement would look like between e p a and the polluting parties and so we didn't know that we had an interest in this and the court said no you should have intervened earlier because you knew that there was a settlement knew that these negotiations were going on and likewise here there's a letter in the supplemental excerpts of record that shows that last version is new in tw was making the t m d l and also knew that it was going to do something that last version is thought it did not have authority to do it could clearly at that time have sought to intervene and participate before the district court to protect its interests but it didn't do that until the team deal w the matter they don't have to be a proper party now certainly subject matter jurisdiction is important but the rules provide times that are appropriate for parties and non parties to raise those issues and those doctrines exist so that parties like e p a and heal the can settle their disputes without having to worry that they'll be hauled into court two decades later to try and undo the settlement that they've reached for that reason that this report was right to deny intervention and was right to deny the will twelve motion this court would also be on its own terms there is no longer a consent decree to vacate even if this court were to grant us virgin as what it wants and say the consent decree was void or to vacate it that wouldn't have any practical effect on the ground for malibu creek on it section three zero three d list the clean water act required a t m deal and it gave the state of california in the first instance the obligation to issue that when the state failed to timely do so  so all of last word to mrs concerns about e p a s quote jumping the gun will be litigated in the other case so we'll have the opportunity to get judicial review of that question so because the consent decree has no effect on the validity of the t m t l there is simply no effective relief that this court can grant us virtuous and accordingly the case is moot and this court lacks jurisdiction to resolve the substantive issues that lacks jurisdiction to consider the appeal from the twelve h three motion because less urgent is never became a party below and that means that last word in its cannot appeal subsequent judgments from the district court and  it failed to protect its rights to subsequently appeal by immediately appealing the denial of its motion to intervene in any event even if this court were to get to the substantive  evaluate the district court's orders on the merits the district court was well within its discretion to deny both a motion to intervene and the twelve h three motion the motion to intervene was simply filed way too late at the very latest  intervene and the district court in its discretion determined that that was too late and that the motion to intervene with untimely the district court also properly denied the twelve h three motion without getting to the underlying jurisdictional challenge that's because after a final judgment and the consent decree was a final judgment the only way to seek relief from that judgment is through a rule under sixty a motion under rule sixty so the district court properly sixty v motion and it didn't fall into any of the exceptions for one in one party can file a sixty be so this court should affirm if it gets to reviewing the substance of the district court's orders should affirm the decisions on both the motion to intervene and the twelve h three motion if this court were to even get to those further layers of whether the district court had subject matter jurisdiction in the original circumstance back in one thousand nine hundred eighty eight the district court had subject matter jurisdiction under section thirteen thirty one heal the base claims arose under federal laws the clean water act and the e p a and all that was required was to allege a non frivolous claim which at the time it had and that's all that's required to establish subject matter jurisdiction and that subject matter jurisdiction existed even if later the court were to have ruled that he'll debate either fail to state a claim under twelve b six or the claim ultimately fair failed on the merits for some later reason the court's clear precedents in a for example below the hood make clear that you don't have to allege a successful claim in order to so two things your honour's first neither appellee provided any explanation for why the court had subject matter jurisdiction in two thousand and ten when it amended the consent decree the assertion that all that's required is a colorable federal claim is just flat wrong invokes or no your honor because the sovereign immunity cannot be waived except by congress so the fact that the sovereigns represented the e p a doesn't invoke it in court is totally irrelevant only congress by statute can waive sovereign immunity and we brief that in our papers i would note also this notion that somehow the statute set a time limit in our bar verse versus one each corporation the supreme court noted quote the objection that a federal court lacks subject matter jurisdiction may be raised by a party or by a court on its own initiative at any stage in litigation even after trial and the entry of judgment there is no and of course that's what the subsequent twelve h three cases talk about for non parties there is no time limit because this goes to the power and validity of the court's act if the court has no subject first off the court is required to make sure it has subject matter jurisdiction all we've heard in this case neither side are a litany of excuses as to why the district court didn't need to do that but the court has an unflagging duty itself to make sure it has jurisdiction just as this court has to decide the appeal is timely the that duty was not complied with and there's no argument before the court you can make an argument perhaps in ninety eight that the law was unclear that would ignore the fact that as this court said and had jurisdictional rules are retroactive to not just perspective so we now know because of baykeeper that there was no jurisdiction but even if you were to concede the argument by two thousand and ten when they rushed to court and amended the consent decree to include the current t m deal that's at issue it was clear that there was no jurisdiction because there was no non discretionary apt they should not have gone into court in two thousand ten the court at that time should have itself looked at the jurisdictional issue the court should have looked at the jurisdictional issue in revised it both an intervention and on the twelve h three motion and frankly even if the court was correct in denying our participation the court still had its own duty to determine whether it had subject matter jurisdiction and this court should provide or a remedy for the fact the court failed to do that thank you ron and i thank you very much