the court i'd like to reserve five minutes for rebuttal the united states and the defendant intervenors want the injunction vacated because they think the district court was right or alternatively even if it was wrong the project should proceed first and have the input environmental impacts considered on the fly while the project continues in construction this build first investigate second approach is not what congress had in mind when it  case that there are problems of the ministry the sclerosis of inflexibility once the decisions already made before the need an analysis has been conducted in the presence of this court have been consistent over the years and just on november sixth in the pit river tribe case this court again rejected the decide first investigate later approach the failure to supplement in this case was not cured by the supplemental information report the server because the served analysis did not support its conclusions or as in the earth the seventy to one hundred thousand acre feet of water that seeps down from the canal south into the agricultural farmlands of mexicali it part of that the drainage flows into the new river we know that because of on a related project now how much of the water flows back into the salton sea we don't know we do know that the hydrologists see them arson was able to get from the mexican water authorities water a low standard for requiring the government to the agency to investigate that now it may be a low standard but i submit that the decorations of our nationally renowned experts exceeded but the knowledge of what they meant was not known it wasn't known to reclamation it wasn't known to care in fact share didn't even exist until one nine hundred ninety seven what i think the policy should be is that if people know of information that's relevant they should participate in the f b i s process but if people don't know that it's relevant and the government apparently didn't know either and the government  foreigners for example there is the cuban case that he's complaining that the changing currency regulations deprive him the ability to take his money from the new york bank into cuba after he had money or bank that's true canal in the united states but the question is does any member of this royal have a property right in the water while they're still in the united states it's property it's it's it's it's it's it applies to the water in mexico and that that the law of nations recognizes that there has to be an equitable apportionment and as we cited in the brief and that this law is international law claim you're making i think it's both your honor i think you have that that's that there's not a true conflict of law here because at the law i state level and the law in the mexican level in the law at the international level i all common when it comes to continuous use of water for sixty years while the persons on the other side of the border know that you're using it they built the can now knowing that it would leak water and of application that's true but what i'd stands for is that the government can lose the right to seepage by abandonment sure you can you can lose the right but that doesn't necessarily mean that someone else acquires the right i think that's the point is that you well let me ask you is there any cases from california state cases or any other state that would recognize the right that you are asserting as a property interest the denon brink versus  defendant and prescriptive right through abandonment in that case there was twenty five to thirty years use of the water to grow a vineyard here are the facts of the stoppel and the facts as played and case involving a lot of tough issues but since the court of appeals said wait a minute there are some hard factual questions here and the outcome can depend upon the facts the motion to dismiss should not have been granted this is a case comes up to you submit in the wrong posture because the facts on stoppel abandonment have to be accepted as true and i know i'm not giving you  as we read the treaty it applies to surface water on this earth water exists on the surface under the ground in the air if the united states is interpretation that it applies to all water emanating from the river point and comes up to the surface parts to the end driving mesa wetlands they do your honor most of it does not and it goes into the aquifer which has been there for millennia whether the treaty was intended to reach it rushed tipton who was the chief engineer at the time thunder at this in the senate hearings why haven't you folks dealt with groundwater in scholarly comment at the time and since then stanford law review cited in many other places all state the groundwater was not intended to be breached by this treaty yes there are some verbal formulations in article ten which if you've read them one way could support that interpretation but those words are plastic and i thought you could read them another way in terms of the historical context nobody intended this to cover ground water that's why i think the eastern airlines case where the supreme court says that you must consider extrinsic evidence when the treaty isn't real clear that you must consider that is the right way to go and eastern airlines they did now if we're going to consider extrinsic evidence  i mean to my mind that's about as clear as you can really look at where that sense is though it's the it's behind a leading sentence in that section that grants mexico in the surface water because we know that because under this the delivery provisions in section eleven article eleven and fifteen they talk about the water can only be delivered by the united  surface at specific points along the river and this is also in the context of the law of the river in the law of the river starting with the compact one nine hundred twenty eight we first to the mainstream of the colorado the supreme court this or that this issue just in i believe january february this year when it issued its final decree on the california arizona dispute and it must use the word mainstream twenty times  clearly is is dealing with surface water from the colorado river and its surface water that the united states is diverting it's allowed by the tree he and pursuant to federal law it's for exclusive use within the united states on the show them when it's done it's off the books of the car river system right well the question is the question is whether you can ever claim a right by appropriation in water that's that under domestic law in the united states long pursuance of the tru remedy for just compensation there is one exception here where again we're talking about an act that was taken pursuant to statute duly authorized by congress and in that context the only exception is where congress has both taken away or both affected it taking with that statute and taking away the tucker act remedy there is no indication here that through the san louis rey act that congress intended to take away that sucker i from me so if there's any taken away or deal with the many cases that are not taking skase quickly on just issue a bill of the they in the reply brief they were a's two points they point to the district court's decision on the united states need to claim and they point to law from this court on issues just disability argument relating to counts one through four not with respect to the need to claim that we're pursuing for this this court and it's completely different issue and it's the issue as to whether when you have a claimant on both sides of international border claiming title to a property right that's claimed by the united states whether that's the kind of issue they can ever be within the jurisdiction of this court we submit it is not and they have no answer for why that should climb by individuals who claim property in the united states those are the kinds of issues that we deal with all the time when it's not that's not a claim the nation of mexico well it is a claim by by individuals in mexico against the united states which is the same thing it's border and it's within the existing treaty regime and even if there weren't the existing real treaty regime it is definitely the kind of dispute that no court that they have cited any case that the domestic case for any court has ever gotten involved in a circumstance where you've got claimants you know on one side of the border and claim it's on this side of the border a court of the united states adjudicating that kind of climate simply it's unprecedented and it's not the kind of issue that this court has standards to apply to there's an existing treaty state law climbing we can judge or if they're entitled through whatever mechanism to have a right to water in the united states that's a that's something that we consider your argument as we you know there is no such right done is in multiple instances they have to have taken a look at extraterritorial impacts not why if they don't have those cases but not in this case well in all cases and they did do it in this case in all cases they're governed by in addition to me but they're governed by the executive order executive order one two one one four and they have taken out look but the fact that they've done it in prior cases doesn't in no way goes to a question or it is relevant to the interpretation of the territorial scope of the statute they don't have of an action and what it does is it compel investigation concerning the impacts of an action and the consideration of mitigation and when those impacts and when those potential mitigation effects occur within a foreign country the duties imposed under are fairly considered extraterritorial and the presumption against experts or extraterritorial application of the statute should apply your honour's trans boundary impacts are different in kind from domestic impacts in several ways first there are the practical considerations that the agencies do not have federal agencies do not have regulatory power to investigate but the claims they are really really involve that occurs it's literally united states the impact maybe on mexico but the actual federal action is fair right the point i'm making your honor is when you look at needs from a from a matter of statutory interpretation the critical aspect of meat  effects and the analysis of the effects and when they do occur occur for transport and when that is the claim in this case it's an argument about transporter impacts that that raises the implications of that are quite different from distinct from domestic impact and therefore raise the same set of concerns that have animated the decisions of the courts and with respect to the the presumption against extraterritorial application of statutes and that the presumption we submit should apply in these cases for a number of by pursuing the exact you're implementing executive order which requires you to consider extraterritorial impact i mean your husband has been considering transborder impacts in other like the small case is a case where you've got domestic impacts but you've got a sort of international aspect to it the question of you know whether a conviction in that case whether congress intended to collude international convictions congress look to this presumption because there's something different about international conventions that congress couldn't be sure that or that the courts couldn't be sure that congress intended to include when they wrote that statute the same applies the need but because when you're dealing with transponder extraterritorial impacts you're dealing with issues that are beyond the agency's particular control to investigate beyond control to mitigate and there are issues that raise foreign policy concerns and implicate existing treaty regimes and issues that are normally address and the argument is not that congress is prohibited from doing it the question is did congress overcome the presumption against the extraterritorial application of statutes in this context and there is nothing on the tape in the text of section one of two to see to suggest that congress did so given these the congress did not address any of these particular concerns in the particular foreign policy concerns that come up in in the cross border cont no we're not saying we should look at it we did look at it we're saying the obligation to look at it arises under a different set of regime arises under the treaty regime it arises under the executive order but the the other answer to the question your honor is the  the public citizen rule of reason and there your honor what what the supreme court held is that an agency has no obligation to consider impacts where those impacts will not meaningfully inform the decision that's before the agency and in this context we submit your honor that given the background principles of the rule of river and the statutes that govern reclamation in the united states and the delivery of water through the element american canal overlay neato when there are significant constraints in the united states about the use of water and i think the first point your honor is the colorado river and your honour's excuse me is the colorado river is one river divided between two nations in its entirety there's no other water you know whether you know the person and city can claim colorado or rather other than the two nations and it's governed by the treaty and the litigation is not about the water that's in the ground going to the justices question when the water's in the ground in mexico that there may be rights to it under mexican law professors know nothing about mexican law but the water that we're living over is in lake mead currently which plaintiffs wish to compel the to be released down the river and diverting into the all american canal so it can then leak out that's not water that's in the ground that's water that's in lake mead as a result of that it is proper that water quality in the united states no property interest can be asserted in that water while it's in the united states state law is not a source the denon bring case expressly says that the right to appropriate seed water arises when the seepage water returns to the stream from which it was appropriated through the ditch there is no allegation in the first amended complaint that this stupid water finds its way back to the colorado river in fact if it did the id could not be charged for justice as already noted that it is how does that affect the need to claim well when we go through the it's more than a troika i don't know what the water under congressional mandate can only be used in the united states for california agencies and the travel bans there is no other water to provide to mexico from the colorado river under the treaty i g is prohibited from ordering water for mexican use it's contract and the decree in joint to only use diverted water in the united states and so going to the maybe to the very last question that was on the table have state in our papers then public citizen would say why study the impact of that water not going to mexico what decision will you be able to make by stating that you can't make a decision to allow it to go and that's because it's the well the very act of saving the water is what causes the impacts some of them complained of and to mitigate it requires so it's that public citizen regime that we think makes this case more like public citizen then public citizen was itself here the impacts are in mexico they are they were in the united states here the district court found they were speculative there they were actually acknowledged here they were studied somewhat how do you deal with the salt in correct although it is in the appellant briefs to say that the district court did not look at the south and seepage that the district court in fact did identify the claim that the water seeping into the ground some of it might be pumped some of that might find its way into a drain some of that might find its way into the river and some of that might find its way into the salt sea and found it that caused all connection based on the percentage of the recharging that aquifer was not reasonably close it actually used again the public system language and the metro edison case language that the salton sea is sort of like at the end of the beat of pearls there's not a reasonably close karl connection and therefore for that reason when and because sending water into mexico was prohibited under the regime i went through that mitigation was beyond the control and that was one of the questions here there is no control in mexico of water consumption and therefore studying that words i want to speak about judicial deference and treaties as you know the constitution gives the president and the executive the authority to do the foreign policy of the united states article three of the constitution does not confer some more power on these on your honor's and we have here a treaty which the interpretation of which has been raised by the appellants so we have a question whether what you're asked to do is interpret treaty or amend the treaty all of the arguments they make ask you to read out of the treaty something that is there or read into the treaty something which is not that is to do that is to amend this treaty because they ask you to amend this treaty the article two of the constitution reserves that power to the executive branch you should not reach it should you reach it and you look at their question david's point is a valid one they're seeking a right to the source of water in the u s waterway they're not seeking water in the ground therefore the argument that they make about the interpretation of the three veils that nothing should you rule rule the ground water is not the subject of this treaty it doesn't give them any right to the source of the water in the canal so you really need to get to that issue at all and you should not get to that issue at all because of the constitutional limitations thank you