second the district court erred in holding the supreme court's decision incredible ng controls the district court area in grafting a colorable claim test onto the expression young analysis the supreme court and the facts of this case clearly and is distinguishable for several reasons first the tribes say it was the functional equivalent of a quiet title action in court elaine because it was a functional equivalent of a suit retroactive damages against they themselves are free to file a quiet title action if they have a lawful basis for doing so but all and owners are seeking to do here and i think they recognize at the district court that their privilege relief was not accurately the land owners ownership of the land is justified by operation of their patents yes i think so the answer is yes yes your honour's so any time that you're trying to justify land is not like a quiet title  first is that landowners are not seeking to pry the state of all regulatory jurisdiction over the lands or issue they're trying to justify their ownership in the mine of course you're not trying to do more than you have the right to do   to some extent and i think this court's decisions recognize that to some extent any request really under a sprite a young slightly retroactive because you have to allege an injury in order to have standing in federal court and you're seeking to in trying for the enforcement of this new policy is that because you think it conflicts with federal law is the federal law that you're thinking this policy conflicts with the federal  contrary is a factual issue that really needs to be settled at trial such lands as critical to the state's ability to regulate the use of navigable waters why wouldn't your efforts a delineation control be within the city within the the thrust of the opinion waters assuming your client or the claims ownership regardless of what they want to do with that ownership it's going to interfere as i understand with the statement that just kind of makes i'm having trouble with that part of your opinion and your a specific state activity even if it is a state of southern interest even though it was the governor commandeering energy contracts during a energy crisis even to the extent that some states violation of federal law and in duke energy because the governor was violating federal law his power you know gets head of the rate to seek to enjoin him exercising that power in a way that conflicts with federal law and that's all we're trying to political here because this site you under which alas good is authorized to make navigate billeted terminations doesn't create an interest doesn't authorize the state officials to create an interest in the property and it doesn't constitute a final agency action the the cost for both the court and the landowners would be significant and as supreme court recognized in leo sheep the owner of a federal patent shouldn't have to go to such lengths the federal mining land and water also of the last apartment of natural resources this is a title dispute between the state of alaska and private landowners the answer to which depends on a federal question the upline owners cannot file quite appellant's can seek injunctive in declaratory relief to prevent alaska officials from claiming title to these emerging lands on behalf of the states through an advocate building policy that is meant to identify and rejected a similar or an attempted application of the young doctor in a similar context because as in the court in one case the plaintiffs are the landowners have alleged the functional equivalent of a quite title action that implicate case to affect the state's napco ecology thank you but i do want to get back to your your question regarding the regulatory power and that difference between the i don't hold case in this situation simply because i do think that it's important to actually look at what the court was deciding and their concern in the court ruling case again getting back to the fact that the court said that by quiting title and saying that the state of idaho wouldn't have an interest in these lands you're sensually removing the sovereign character and what that's less important because the state of alaska and all states that have ownership interest in the better be submerged lands have a public trust duties or public lands that are subject to availability and used by everyone and the states have an obligation to regulate improve and secure submerge lands for the better the benefit of every individual because and this gets back to being patents date back about one hundred years they get back about one hundred years but i would also point to the alaska right of way act which was an accident eight hundred ninety eight which basically applied equal footing doctrine to the territory of homestead act the territory of alaska didn't have the authority to convey the beds of title influence or not of went back waterways so i appreciate that but i'm not sure that i understand the answer to my question that i hear it well might my position would it definitely has a difficulty in identifying each particular one and there is a set of federal criteria that needs to be applied in order to determine whether but water way is actually navigable in fact for title purposes or  influenced ok so here's the question again does it matter since we agree that the state has an assertive the interest previously does business that matter is that a distinction that matters between the court link ace and this one i don't think so your honor i think in court  on a case by case basis when a landowner constant says we may want to extract some gravel from this waterway what do we need to do do you know are looks at it they make a determination yes we actually have sort of the state of certain ownership interest over land ownership which is further illustrated by the relief sought by the uk when owners although the plaintiffs did withdraw their request for a judgment declaring that the state had no title interests to be submerged lands they property changed if there was a cloud on the state's title then yes the state would need to pursue a quiet title action on that video narcissism is not a final agency action it's it's mostly  a statement on behalf of the state that yes we do claim an interest in this part of property letting the property or the up land owner know if that land owner interest to contest that interest then there would be a cloud on the state's title and it would honor i would say that the state doesn't have a mechanism for compensating you and owners in that particular situation it's its position is that we've always held these lands since statehood but i would believe that clouded by the state's action yes and they have alleged that throughout their complaint mistakes because they should you know i don't want to waive any potential defenses that the state might have in the state court but even though c decision isn't a final agency action it's still clouds their title and they certainly have that allegation that there's a cloud title when they bring their quite title auction and state court so at the moment they couldn't convey this land despite any confusion or disagreement between the parties over whether to apply a facial attack standard or a factual attack standard to best motion to dismiss the state's position well the district court into this court has been pretty would have been the same he simply i think acknowledging that there is some confusion and difficulty in applying these types of standards to this case where the state is actually not challenging that the pla properly stated a federal question under the same original as act the state is just come in and said even if you've stated a cause a cause of action or a federal question this case cannot proceed because the state has a sovereign immunity claims and these are state lands so the question for this court is what does the standard of review what does the state have to prove as far as its interests and i think if you look through those cases dealing with the federal quiet title act as well as the  presumption arising from the equal footing doctrine so while the equal footing doctrine may provide the backdrop section two of here speaks to the specific circumstances in front of the square and landowners patents fall directly under section t going to the question of whether patent the patents were lawfully conveyed that's a question of fact it's best saved for a trial and to accept when and if we accept landowners allegations is true here we have to accept that their land