fired up into two different aspects number one i respectfully and continue to disagree with judge will always determination that the young decision and even more closely the waste management decision of the fourth circuit is not dispositive of what i call the threshold issue and that is whether or not a regulatory measure as in artful and over inclusive as this that has the effect on a license vessel that just does is not invalid on its face we continue to maintain that a regulation that bans the operation of a not because of its effect on the water column or its inhabitants but because of the activity being taking place on the vessel is unlawful and that's why we again we look to the impacts one acoustical and the other an actual physical impact with with the humpback whale and we demonstrated why whatever they thought about thrill craft whatever we thought of they thought about thrill craft in this context you most certainly do well if you look at what the supreme court said specifically in united states versus lock in remain ending the conflict preemption cases the issues in that case they remanded for the develop arguing on the basis of dormant commerce clause or if we were arguing whether or not this was legitimately within the police power the state outside of this context this is not a substantive due process case this is not the dormant commerce clause case as much as the state would like to make it so in order to have the benefit of the minimal constitutional protection that it is whether or not the district court got it right with respect to first of all the threshold issue of whether or not a band of parasailing is they can to the the band and the young navigable waters and now we countered because the a fact of the ban is to preclude this activity anywhere within these waters surrounding these islands or a portion of the year during the mating season  back whale right and the question becomes is that partial restriction for conservation measures which congress seems to have now authorized under the budget reconciliation act or whatever is that is the issue and again i i mean we we've we've we've made the argument again the argument just to sum it up and i don't want to spend too much time on it because i think it speaks for itself but the argument is they have marginalized the ability to prosecute the navigational rights guaranteed by this license for five months that is a substantial impairment would submit the aerial advertising ban that was at issue with guys like me it was not something that really targeted but i want to i don't know we're back to i mean we keep dancing around the issue and i appreciate that where you're coming from ban the equivalent of the van and young and waste management we argue it is and we we through the record below in opposing the state's motion we've made that case and you know it is what it is all right if it is not on its face invalid because of conflict with the licensing privily gender the the documentation at issue here then the question becomes how do we go about analyzing whether or not this is this falls within the narrow exception that that congress and the courts have recognized in two instances the huron reasonable conservation environmental measures and the second  category that certainly the law court talks about measures will lead to the peculiarities of local navigational they've never tried to defend this based on the peculiarities of local navigation so we can take that off the scale where do we circuit court or sees me by the by the legislature instead locke and waste management command that this court take a hard look at the conflict and find out and make  determination based on an evidentiary record whether or not the measure can be sustained and basically i would argue you know when i talk about a hard look i'm talking about a hard evidence very basis that would show hear well you know i'm not just not in this context your honor and let me here's why i want to come back to judge judge tolman's point that and to make sure i'm making myself understood you begin with the notion that generally there is a presumption against preemption well what does that mean well basically that means that as the state would have you defer to the judgment of the legislature and you if you can find that it's  within the traditional area of police power you allow them great deference and latitude and that's what that's how they view this case is you got to express declaration by congress through the statutory change that the legislature can regulate in this area so we know that it is not completely preempted that's why we have not argued here your honor the conflict between the state ban and the humpback whale approach rule so if that's the case if we're starting from the conclusion that there is no complete preemption then why are we back to what we're going to think of which is reasonable well and i and i i was trying to explain my how i get there in this context the law court and the cases that came before and mainly rice make clear that in this area regulation of of coastwise activity i'm not stating stating it as well as one might but in this area it is clear from the earliest days of the republic that there is no presumption against preemption ok so what does it mean that we we do not presume that the law is is not preprogrammed it means that we have that we subject the rules in this area to a different think the the use in you know if you look in the context in which they're used they're basically referring to and narrow area of concurrence where the states may regulate this is just this regulation of voting activity is not an area of historic regulation by any state unsurmountable i think the problem that legislature to regulate in this area if this were simply back to the beginning of the last before the watching i think your analysis would be correct but don't we have to look at it differently because congress has now opened and specifically authorized the state to regulate in this area so that your presumptions we don't start with presumptions we start with a congressional authorization to regulate and in order to protect this case began when it was first filed came on the heels of this court's decision as you know and it was filed primarily on a conflict preemption basis we moved for summary judgment on a conflict preemption basis for  go down the conflict preemption road but initially judge one way didn't buy it and that's what that's certainly what brings us here so now the congress the act of the section two one three provision in no way knew that we were talking about conservation and marine mammals there or why should i assume that it was restricted if you want to restrict it and before broadly  protection act i mean that was the only and again it carved out an exception for hawaii and we're not here arguing about whether or not that really were represented the will of congress or simply the ability of our senior senator to add this in my view continues to be quite strong that it does not affect conflict preemption and because we're of the area then worry and there is no presumption against preemption and therefore it is incumbent on this court as it we met the standard under the cases and that we won a final judgment and the only thing the ink had dried on that final judgment impermanent junction he granted us all of the relief the argument is that because the the law was changed but there was no stay of the judge not got a final judgment until the appellate process has been exhausted that is that your entitlement to fees depends on a final judgment in the district court if you don't seek  question if nothing ever happened because the law changed before the injunction actually went into effect and where the change in the right respect to this well i think you have to look at the mandate of the court in the mandate of the court was to change the relationship the fact that it was to take place at a future event or a future time which was overcome by of events does not deprive us of prevailing party status  someone a creditor might not or get a judgment debtor might not pay and you haven't collected the money you've got a viable judgment you're out there by the intervention into statute so i think point doesn't make sense for you to have these sort of when we don't know what would have happened had the appeal right well there was a reason congress changed the law because they're the judgement now we have we didn't have a judgment we had the ruling of the court you know that's one of the complications the the magistrate recommended denial and the motion for fees was pending at the toulouse whether it doesn't exclude whether it's unreasonable or discriminatory well i think and that sure if that that if plaintiffs are persisting with their argument that we've excluded by way of regulation i case so what that what the dissent is telling us in that case and it's kind of stance or reason is it's impossible i don't have the language right in front of me but i'll get it as i talk but basically what they're saying is  smoke ordinance if the vessel is equipped with hand fire scotch marine boilers so you know you have it you have a regulation that basically makes it impossible for an economical i guess what we need to use that type of fuse that type of  in douglas vs seacoast products you have a ship that comes from out of state and wants to do many hidden fishing the regulations the douglas is an interesting case and very similar to ours in some ways because regulations in question there actually it's footnoted with respect to that too as it says the regulations prohibit looking on page two sixty nine their regulations similar but but the point of a fishing license is it says you can fish for anything and so they got a fishing license from the from the feds and never the west virginia says well people from virginia can fish in our waters but people from other places can't the parks change now that the waste management case is a case in which  well and that's why the case is actually so long that they don't really get to the part that's analogous to arson tollway late in the case the second statutory provision the stacking provision requires virginia's waste management board to promulgated regulations preventing stacking more than two containers and the third statutory provision pertains to barges prohibits the commercial transport of hazardous or not hazardous court may not exclude but may impose upon federal licensees reasonable non discriminating conservative conservation environmental protection measures within their police power but may not exclude so what what the court did with that is  what it said is and i did talk about this and sort of judge molloy says the three rivers ban completely excludes federally licensed barges uses the word exclude but it goes on to say from transporting any type or amount of waste the reasonableness of such a complete ban is simply not supported by the evidence so it wasn't despite the fact that they used the word exclude it was not an exclusion case they looked at it and they said there find a conflict and we're going to go off on that basis and they say well that presumption doesn't apply here well that there's two problems with that argument and i'm going to tell you what the two are and then then talk about the first the first promise that's just simply not correct  based on the based on the cases and the second one is so what doesn't get him anywhere you're still using the word reasonable and and here's what i mean by that the first reason is simply wrong is because the cases where we come up with this cannot exclude but can nevertheless have reasonable nondiscriminatory regulations those are exactly the kind of cases that they're talking about specifically douglas the ugh this is the same kind of case we have here it's a it's  a fishing license but their argument is the presumption doesn't apply here and therefore it means reasonable means something other than reasonable because because see they don't really they don't really talk about what is what isn't there if they are going to go back and do when i answer i just don't know the answer then i don't know what happened after that either you let me move you i'm reading this differently i thought that what the court was talking about was you've got a complete ban on a particular type of cargo which is and that's the right right sort of solid waste york city garbage right area right then you've got a second van that even if you're going to be transporting wasting containers you can't stack the containers more than two that's correct and that's a different issue that's a coast guard safety regulation type issue and what i see the court saying is the prohibition on carry  of municipal waste is a complete ban and that's a problem because other issue with regard to stacking containers more than too high is an issue that might conflict in an area that has been completely preempted by coast guard regularly yeah that'll safety vest certainly that's certainly a reasonable way to read the case frankly the case it is difficult i mean you see it as you know it's thirty six pages long and you're talking about basically half a page in which they're talking about our particular issue and it's not really fleshed out to be quite frank and it's not really that easy to figure out exactly what it is that they're saying in that respect and i think your point do you that the thing that i mean it clearly is telling us something about what congress thinks but that the difficulty with arguing that that that that to thirteen is the answer to the question that we're on today in the same way that it was legislature came to this conclusion before they talk about the issue that we're going to if you what i what i want i want to point out is if you look at the opening brief the the original act is is in there at tab ten and a is sea creatures such as migratory humpback whales and sea turtles and the third reason for it i mean there's a lot of things here and the third reason is the operation of the throw craft and high speed motorized vessels in the waters of the state pose a visual and aural oral meaning listening a you nuisance to the residents in the communities in which they are operated and there is evidence for that also in the record  allow excerpts of the record at page ninety one anyway i just have one of the things there was a presentation a legislature saying we don't like parasailing because they're noisy and they don't look good and they're annoying and to me that's why going back to this full circle back to the reason i'm on this issue i mean you're right with being in the ballpark of the kind of things that's always left to the legislature this isn't just regulating you know going out in right you know what i have to say that i think i don't agree with that i hear what you're saying they could completely ban thing within three mile limit yes i do i do i think i certainly think we have or i'm not sure well and you know what i don't want to argue that case because i got a lot better here i got a lot better kids than that but i don't want to say no to that but you know the point is it going again back to the recent the missing were exactly in it can be used for something else that's right place where you can be used for something else they can't make and they can't make money using it for something else i mean i think that we'd have to accept that  douglas they couldn't take it between us that they couldn't take it or they could only take it i want to make sure this yeah i think they could only take it between may and november so i guess either way that's six months  could take it six months they could they can take it six months so it seems to me that regardless of what the limits i think that's a difficult question it's a difficult question either way your honor because if you know if you're going to if you're going to start talking about  a regulation so that's when you get back into the first test if you if you start talking about a regulation as being an exclusion then where do you draw the line the other way you know what if you have a boat that that can only make you know makes money going up and coast guard license vessel that makes money by driving thirty miles an hour up and down fifty feet off the beach but have the thing sort of argument in fishery regulations or we're talking about that i think it was at some point there was a taking claim in this case a claim that they know there was and i think there was a case in which somebody said exactly that there was some sort of regulations on their fishing vessel and they couldn't make any money doing of course all that sort of taking so yeah i think there is an analogy there certainly types of things that restrict things and make it i mean that's basically the nature of any regulation by definition or regulation makes it more difficult or less profitable to do something and you address the easy question briefly and you know there was there was a think up until that point yes we were concerned about the real world impact for purposes of being a profile in party that's where you could be a per gallon party without a judgement here favor then the county comes in and says you can only be a prevailing party if you have a judgment in your favor even if in fact on your litigation i had had it and the actual great effect so at that point mean as we all know that's a case in which you know the catalyst test was rejected i certainly did not since before your honor's perceptive question i didn't think that that was the case that was could be read to that is not sufficient that in order to become a prevailing party you have to have more than the judgment you have to have some relief on the ground i believe that's still the law and the other the other point i wanted to make is that at two points first of all it was there was a question of state well we got a state we didn't get a stay the day the thing happened which would be your paradigm case but we've got a we've got a stage before there was any alteration in the legal landscape number one and number two i don't want to give this point up and i know the court is five in the water why is that right it's you know for the same reasons that i talk to you about for twenty minutes just or there's not any case anywhere in the country that says this that  question is a is a great question that i have frankly haven't thought of i don't believe from what i know of but can and that there's anything about canon indicating that it altered the legal landscape with respect to this case in a way favorable point of anything it's the other way and finally your honor i'm sorry you had mentioned a soul versus one of his i looked at that and i didn't bring it up because you know what it seemed it seemed to be a relatively narrow decision i mean i guess it does still continue to case that the supreme court is more interested in narrowing one nine hundred eighty eight and expanding it but the specific holding as i read it was that if you had a preliminary injunction that didn't necessarily mean you were the prevailing party with respect to nine hundred eighty eight i don't think that's really discharged through the propeller underwater you cannot hear of these boats and so the notion that the oral impact on people standing on shore justifies this legislation is simply put to has a milans of reasons thrown up in what as finding a justification no indeed what it was the response of if you exclude that and just look at the conservation protection rationale you have that's good enough in there that's the objective we have to look at the means in this case has been from day one about the means chosen they have not they have to be extensively regulated marine mammal protection act the statute speaks in terms of her wrath or annoy which federal law is interpreted very broadly to prohibit virtually any acted that  testimony by anyone with their hands that we do not engage in alberta style analysis in questioning the judgment of the legislature in accepting that kind of that if if indeed we are simply going to review the ban under the rational basis approach that that would be taken in the garden variety so some substantive due process darman car most government commerce clause cases you would be right right and the best response that i can have when we're talking about non migratory species in local waters of course historically the states have regulated mackerel fishing men had been fishing they've been doing this for centuries this is an area that is customary within the jurisdiction here we have the state of hawaii taking upon itself to regulate and legislate boating activity in proximity to migratory w when the the national agency itself has determined that it's not necessary to ban the activity so what i'm submitting to you is we have an area of of it's not regulation is prohibition in an area where the states do not have a historic role and we're talking about where we have these two interests the federal interest in the state interest and they're coming together and we're now standing before the court in deciding how do we strike that right balance and i'm simply