specifically federal rule sixty five initially there are there are two jurisdictional issues in this case whether it's an appealable order and whether the case because of the district court decision on the merit made most strongly in our reply brief and also made in the watered it's case doesn't say anything different than the case in which this court's procedural law applies you know a broad statement that was that that was only expected by a narrow holding in that case which was that the administrative procedures with county and are you saying that the statute by its own terms applies only when you are in a court of the county and it does not even report to apply unless you are in a court of the county actually diversity because actually what you're saying i'm asking you a different question ok i'm as i one of the ways i read this nevada statute is the talks about posting bond when you are in an american court of the county yes and so when you get down to number five it says a man shall not be required except on about a lot of law the promise of seems to me is contained in number one just to say you are in a proper court of the county and that the statute does not purport to say anything about where you are and what happens if you're in a federal court exactly we believe the entire that entire provision does not say anything about what happens when you're in federal court and we've outlined in the truckee river meadows brief outlines other provisions that are clearly specific to speak or proceeding such as an appeal will be taken from the what is the proceeding here what's the purpose of it the allocation proceeding that we're passing of that the proceeding to the underlying question was about it a temporary transfer permit a temporary permit to transfer water rights of the tribe that the united states and and the tribe applied for to the state engineer it was granted by the state engineer and then when we went to  that the question of the nature of these allocations and what they what they're supposed to do and the criteria for the allocations as is done by state law well yes yes there are there is a state provision it explains what has to happen for a transfer permit to be granted and we rely on that but our point is that here once they file the appeal in federal court then the federal court rules take well engineer makes a decision like this what what is the proper procedure if you want to determine whether or not it's appropriate under and or water just doesn't purport to address it does more purport to rely on the state engineering kind of borrow him as an adjunct to the process for this administrative procedure that didn't exist in federal law  sufficiently broad to control the issue before the court and that is certainly the case here in federal says how can i relief shall be granted now let me ask you let's assume we're not dealing with this unusual procedure under the orange degree but we're rather dealing with for example some sort of as zoning ordinance and there's been an application of the zoning ordinance that requires something and there's a challenge in federal court to the application of the zoning ordinance which requires t down or allow something to be built or whatever and the party who wishes to stop that that order from taking effect pending review in the federal district court comes into federal court and in your view can get an injunction assuming that party complies with the standards of rule sixty five and try to get an analogy to some sort of a state or local administrative procedure that's being challenged in total court to see how the tracking well my question is not the hand of versus plumber well if the federal control of the federal controls i'm with you on that point my question is what is the federal rule others on terms do and i think you're telling me is that when somebody comes into federal district court challenging the operation of an administrative order entered by ozone inboard some others need agency whatever idioms and they say listen i think they got it wrong and while my challenge in federal district court is going forward i don't want to be enjoined to do this think i'm going to tear down my house that person relies on rule sixty five the rule sixty five that tells us whether or not you have an injunction pending a proceeding in district court that's my question ok and your answer is yes rights in the decree that a predicate it on federal law and that those water rights in large measure have not been used by the tri for irrigation purposes so they try to apply for to change the course of use and the place of use of decree states that persons was rights are educated here by shall be entitled to change in the manner provided by law the point of diversion place means manner of purpose of use of the waters to which they are so entitle already quite there of so far as they may do so without injury to the rights of other persons whose rights are fixed by this decree so the first place to look for rules to apply is the provision of the decree which says you can change your rights provided you don't adversely affect or injure the rights of other people whose rights are adjudicated by the decree but the that provision also refers to the manner provided by law and so  fortunately or unfortunately this appeal does not involve that issue we're here soley on the procedural question of whether the federal rules apply or this or state rules apply to the state question or to the injunction question but i did want to point out that there is an underlying disagreement which will eventually come to this court on the merit on the appeal from the merits of the district court's decision which is what substantive law applies and the tribes position is that the law to be applied here is better a law and that the entity with jurisdiction to apply that law is the federal district court and not the state engineer put the state engineer to have exercised jurisdiction over these kinds of changes in the water rights that are subject to this court's jurisdiction and this issue came up in what we call  exception to that now in that footnote that i referred to basically the this court in alpine's who inquired into the question how does it come about that the federal court is exercising  highly unusual i think they use the word extraordinary jurisdiction to review the decision of the state engineer state official and of course the answer to that is it's not doesn't say exactly this but the answer essentially was it's because the  state engineer is acting as an arm of the federal court with regard to changing water rights that are under the federal court's jurisdiction it so it and it's acting pursuant to the court's continuing jurisdiction the federal court originally acquired jurisdiction by virtue of the soup being filed by the united states in federal court it has jurisdiction over the race and of the signed the state engineer the responsibility which i suppose the senate and you could have declined but did not the state engineer the manner provided by law or referenced in the in the or ditch decree authorizes and powers and tells the state engineer to apply state law to those rights but this is a different situation because these rights federal rule with respect to injunctions or premier injunctions should follow but would you say also that when the state engineer educates which is a much more common case one of the organs to create water rights under state law would you argue to them that if you are in the state in the federal district court and the tri has wants to enjoy the operation of the state engineering creamy would you argue then as well that that standard f was of whether the underlying cause of action is predicated on federal law she didn't tell me that is if the question were to arise in connection with some right other than that the tribes are right that appealable at all and we have presented that argument in our brief basically the nevada supreme court has already ruled that a stay is not appeal under under state law the stay in question here we not actually have the hallmarks of an injunction and there's one very important distinction that you have to make with regard to what's going on in this case we already have a court determination on the relative rights of the parties here through the after case in which you look at individual water allocations exactly and as it happens you tend to have the same parties letting it litigating against each other time after time would actually have to separate applications to what i'll call the zoning ordinance which is was one very important distinction and that is that if if if i had been decreed to be able to use my property according to a certain zoning determination i don't have the unilateral right to change the zoning of my property without going back through some process in others i don't have a vested right in changing my zoning that's something that's discretionary with the zoning board and then also by the court oh i see i mean maybe you're thinking man alan's in a different way from what i meant i'm not an you already have a determine the termination of those relative rights now they ask you this if we adopt your position if this is not appealable would that mean that if the district judge is wrong which i understand is a separate question if you are going to get to a moment if the district judge wrong there is nothing that this court can do about it and that is to say if the district judge is wrong routinely upon the posting of a thousand dollar bond always to enjoin that pending the case in the district court we can't touch that question ever i mean  very reason that mr palliser stated ok that the transfer has to be done in a matter accordance with law now what that means is that the state the state process and the order if court applied the state substantive law in the sermon in the relative rights of the parties so those rights are fixed now when they come back and try to change them but you mean in federal court under a law means i've got to follow nevada procedural law in federal court becomes final when i think that's what judge george said in his decision he said because that the issue was coming to a digital form for the first time it's important to maintain the status quo under the under the nevada revised statutes because that is reflecting the policy in state law that you want to maintain the relative price of the parties that have already been adjudicated in the orcutt's case and when somebody changes that there was a potential for an injury to the other party's water rights and so that's to be protected the work it's court is protecting the decreed rights of the parties that have already been adjudicated and so they can't do that in some kind of coleman or a fashion they have the essential you have to look give a full and fair hearing to the whole issue in order to of these water well and this particular case for example if if an injunction had not been granted this case would be moot that would have water would have flowed in the truckee river and the case would be over we would have no remedy there would be no remedy for my client whatsoever there's no doubt about that when the water is flowing pyramid like but my point is you're saying well if i could have gotten this hey i would have lost on the water that i was otherwise entitle to i'm not going to get well yes but that's because nevada loads of the nice that way in terms of then that's that's the foundation for your argument well that and the united states supreme court it was said that the federal courts should apply state water law when they're looking at water rights because there is no federal water l so i go to now a g is i think we've cited to it this computer electronics case out of out of the ninth circuit there there was a trade secret issue and the question was was there a conflict between the prohibition over of revealing the trade secret discovery under california law versus the rule twenty six discovery requirements that would require this revelation and there that the court said the ninth circuit said that the prohibition on the on the release of the information about the trade secret secret  could you come into federal court and seek an injunction under any to rule that is to say would rule six you try in that circumstance apply or would you be out of luck if you start drawing but i think that in that situation if we didn't have an arrest five thirty three for fifty we would because of the unique circumstances of water law you know we have a very different situation but i got and i do want to do one point out a couple of very quick things one is that the there is no direct conflict we believe between the state provision under state  but that's a very good question and i think the answer that is you would have to file a filing fee just like in this case well because there is a separate rule for which there is no state compliment and others were coming up from if we come from a state of ministry of agency there is no issue with regard to a filing fee plus uninvited rules there's a filing fee so you know you've got consistent provisions but an i nteresting point that your honor raises is that the parties to the parties follow nevada procedure when they come into federal court the answer is they do we file within thirty days even though the united states as a alpine degree and the upper end and judge george has construe that to decrease to be consistent so that's i was so we follow that we follow the procedure going in the federal court we serve the state engineers by certified mail we do all the things under the under state law to perfect our appeal and so it's it is a it is a mixture and it's it was hard for us to imagine in this situation if we if we went in with and had the burden to will control over a general grant of rule making authority in other words does congress's mandate which is long been recognized by this court that nevada water labile substance and procedure will apply over the or dish degree control over the general grant of authority to promulgate rules to the supreme court congress's congress has specifically adopted state water law procedure and practice and that is controlling in this case and the district court did not urge in applying an r s five thirty three for fifty some care of paragraph five in the alpine to decision this court quoted in one thousand and two reclamation act and i'd like to read that in part where it says nothing in this action will be construed as affecting or intended to affect or to in any way interfere with the laws of any state or territory relating to the control appropriation use or distribution of water and  alpine two stated that because of the absence of transfer procedures and a clear general deference to state law it impels the conclusion that congress intended transfers to be subject to state water  makes the questions list so far as i'm concerned all water law procedures you mean all procedures and political to water law cases yes but a water law case in nevada in the nevada state court will get the procedures in nevada state court now choir you differentiating among procedures then there's the any water law court in the state of nevada any water law case and asked in court will get nevada procedures you're saying only nevada statutes that specifically are addressed not to water law cases yet that that is how this court to find the manner provided by law in the org its decision what they said and specifically said not only state water law substance therefore but procedure as well governed or ditch decree so the question then becomes what is a water law procedure and as you said how far does it go on that and are asked five thirty three four fifty the chapter five thirty three deals only with procedure before the state engineer and water law section four fifty which dischord has cited and followed and quoted deals only with the procedures for challenging the decision of the state engineer has no broader application you could not take an hour at five thirty three four fifty something paragraph five and challenge some other some decision another state administrative agency it does not apply by its terms it is limited to that by  on that is whether the state provision is a water law procedure clearly it is it applies only to a ruling of the state engineer by its terms in section four fifty it it affects only his decisions and no others it reflects unique policies that are completely unique to the water law circumstance you could not pull this out of context and use it someplace else as i mentioned this court has followed and r s five thirty three for fifty the burden and standard of proof which has been cited numerous times in alpine and or ditch decisions policy of nevada water law that's not the standard in other cases in nevada only those arising from the decision of a state engineer this court has repeatedly said the decision of the state engineer is prima facia correct that standard is found  our ass five thirty three fourth fifth the third no there is no reason to take the state provision one one procedural matter within this larger statute pluck it out and say that for some reason this does not apply in federal court even though congress has mandated that the other water law procedures that we have been following that we've been citing to and we've been following and following do apply there's no grounds for doing that your hon this is not a rule of civil procedure nevada has its own rule sixty five that it applies in other circumstances this is a rule of nevada water law nevada water law has not been borrowed congress directed that water law be applied in this instance and clearly congress has the authority with its authority to manage and delegate the authority to to the court to establish their own rules with that comes with it the power of the congress to establish specific rules which it has done on numerous occasions from everything from haiti is corpus in or pleader appeals from a federal agency these are all specific congressional that control choice of law and procedures in the federal court congress did the exact same thing here it already made the choice of law state law would control and there was a whole balancing process  into a number of reasons why state law has been followed in the water in a water law then you can likewise the procedures of all are already i have also been as i have already been selected there is no really good record doesn't occasion him and we agree with the tribe that this is a narrow issue here and that the larger issue of the application of state law to federal reserve rights has not been raised all parties ha different and you can choose i'd like you to respond to the argument i was just hearing that in other areas the federal district and other parts of the nevada statute have been applied  statute have been applied in the federal courts and therefore why separate out paragraph five or not apply yet could you respond to that argument applies in the reclamation act and applies and this does very important only to water rights of federal reclamation projects it doesn't apply to the or ditch degree as a whole doesn't apply to the pyramid lake tribes reserved water rights it doesn't apply in a civil suit in federal court under rule one of the federal rules of the look procedure the federal rules apply in all suits of the civil nature in federal district courts and are used and i have to go i'll have to go back and read some of the alpine i forgot how many roman numbers we are you denying his representation of what's contained in those cases where the federal he says the federal court is applying the nevada procedural statute but the whole alpine line of cases after the original decree deals with the water rights of the federal reclamation project the new federal reclamation project and in that context the federal court has applied state substantive law primarily on the issue of