claim just a less and expert affidavit supported that the t c the telecommunications act specifically section seven hundred and four denies them their constitutional rights to life liberty and property suffered seizures cancer heart damage loss of homes loss of businesses from cell towers and antennas the life threatening injuries continue interpretation of section seven hundred and four that the definition of environmental effects includes health goes against the plain meaning of both words and we believe congressional int unconstitutional taking the plaintiffs in their brief to the court have argued just that the district court erred in ruling that plaintiffs had not had failed to state constitutional claims the discord found that they had standing to bring the case but then the district court said that they had failed to state a claim we believe this was a well let me just ask you about couple questions about standing  in the district court say that you lacked standing to bring a claim alleging a violation of section seven hundred and four but that you didn't have standing to bring your constitutional claims against the united states that is that accurate yes that is accurate and the plane just position is that they never asked sue for remedies directly city's decisions about locating cell towers would be any different what we know is that plaintiffs would be given opportunities to petition their participated but it was always under the shadow of a seven o four as preemptive powers and seventy dollars forced prohibition on considering environmental effects and the definition that environmental effects include h now the us has again raised the issue of standing in their papers how ever the plaintiff's  opinion is that they are not in a position to raise standing because they did not cross appeal they cite to me let me stop you right there even if they don't cross appeal and even if they needed cross appeal on this issue which i don't think they do we can we have to review our own jurisdiction reste irrespective of what you are there so you don't waive an argument that there no standing meaning there's no jurisdiction by not filing a cross of yes however the cases that the us cited to gel with  jurisdiction under diversity claims and you know anything under that vein was dealt directly with whether or not the original court or the  the jurisdiction because of diversity well counsel along the same lines this court isn't restricted from looking at any applicable authority addressing standing whether the government or any cases i suppose if the cases were helpful we could talk about them but if if if we find something else applicable there would be no restriction on our ability to look at those ok so the w a c i a is the legislation that remove they no longer have notice knowledge and the opportunity to participate in the process of determining whether or not cell towers are antennas should be place where they should be placed and how many should be grouped together the chapter twenty seven a removed any type of application necessary which again removed haven't noticed component so clane tips are in a position i have that they do not have an opportunity to redress this issue or file grievances because they are not given notice of when this is going to happen because twenty seven as amended and now the plane just have recognized that constitutionality determining that laws are unconstitutional is something that is to be avoided if possible and the authority that we have cited would give the court the opportunity to do just that in determining that environmental effects does not mean help there's there's no congressional authority that supports that congress intended environmental impacts to include health there's the f c c doesn't speak of health well let me let me interrupt you the can't you mean by adopting regulations under statute what the limit is for the radiation from think they did i think that they have developed levels and because they were required to do so but in a recent case that the f c c was joined in they did a really nice circular argument and saying that we don't have to state that something is safe level we you know as long as we've approved of the equipment it's safe it doesn't matter and honestly this case is not about levels the plaintiffs have not brought any claims against you know what could be considered a an appropriate level or an inappropriate level for an insurance level or a non interest level their complaints have nothing to do with levels well the argument you made it i mean your concern is for the the health of humans who are in proximity to these towers right correct and the f c c has made a determination that there's a level at which they are safe for humans i believe the f c c has determined  that there might be a a level but plaintiffs are not arguing that plaintiffs are arguing that they have already sustained injuries and that with the placement of five g s small cells the injury will become impossible to avoid the further injury will become impossible to avoid they will not be able to go anywhere and not be injured by this due to the design of five g cells it doesn't matter what the emission level than the challenge is not to fight the technology the challenge is to except that there have been injuries and because there have been injuries petitioners are due redress ability well your proceedings are under twelve b relates primarily at this point to twelve to the five g technology doesn't it i mean there's other applications going on santa fe area that i'm generally unaware of in terms of create a very big concern however that does not mean that this case would only provide remedies for five g emission our cell towers and antennas right absolutely because seven out of four prohibits any state or local government from considering the environmental effects when awarding whatever they're going to use to award the telecommuting communications facilities permission to provide those antennas and towers by removing the definition of environmental effects including how is a is an big us to the extent that you need to look at congressional history to determine whether health was included in is there anything in the legislative history that's helpful on this point well we  the plain meaning of environment and the complaint in the plain meaning of house isn't enough for you to determine that congressional history there was why coined and which there was a a house committee house commerce committee report that was issued that chalked about health this was back in two thousand and four i believe that talked about health but it talked about health in the sense that the telecommunications would allow for people  to participate in things more easily through internet and through cell and that they said might you know be beneficial to the public health the public safety things of that nature at no time has has congress said you know environmentalists clude you your honors and please the court jack starch or on behalf of the united states the three defendants here planted divide up our fifteen minutes all start by taking nine minutes followed by the city of santa fe with four minutes and then that the state of new mexico  with the final two minutes the plaintiffs in this case allege that they have suffered various harms as a result of radio frequency emissions they allege that those radio frequency emissions are produced by cell phone towers that are owned operated installed by rd party telecommunications companies and that the decisions about where to place and whether to place those cell phone towers were or were made by the city of santa fe at no understand that argument because the precise language of seven o four say that the city can not take into consideration environmental factors  read the statutes played no role code plays no role in the location when in fact that is then would be muted from being able to express any objection dictate or mandate the results of any cellphone citing decision in particular so even that removes one factor from consideration declaring section seven hundred and four to be unconstitutional would not necessarily result in any particular placement decision coming out a different way because it merely removes one factor from consideration there are all sorts of reasons why a city or local government might choose  cellphone tower in a particular location the nd response i guess i give to that to that point is that i think it's important to keep in mind the facts that have been alleged in this case and while perhaps there there might be another case in the future that presents a closer question on standing the allegations in this case make very clear that that the primary thing that is preventing the plaintiffs here from expressing their views about  from the amended complaint they allege that the city has repealed all notice requirements and all means of public participation in decisions about where to site the cellphone towers and so given the allegations in this case you know plaintiffs have made pretty clear in fact that section seven hundred and four is not what is preventing them from expressing their views and i'd go further and say you know not only is sections of new for not preventing them from expressing their views on these topics plaintiffs also made very clear in the amended complaint that they have in fact been expressing their views on these health topics at every opportunity and so the idea that there's you know this is at the district court the basis on which this court found standing was on this this this theory of of some constitutional injury chilling type injury as being the injury that is caused by section seven of four in this case you know but that theory that that that sort of a chilling injury is enough to give plaintive standing here runs into st a doctrinal problem i'd say with richard which is you know the supreme court's holding in clapper pretty clearly states that mirror allegations of subjective chill are not enough to establish standing to challenge some statute absent some past objective harm that has been suffered and then i guess my nd point related to that one is there is no objective evidence of any sort of harm or chill in this case plaintiffs again looking at the allegations contained in the amended complaint this is j a twenty six dollars paragraph forty of the amended complaint plaintiffs plainly allege that they have in fact participated in every approval process and have testified to their injuries and losses at every public hearing for every proposed telecommunications ordinance and every proposed telecommunications facility in santa fe from two thousand and five until the present day so any suggestion that there has in fact been any chilling here is sort of for closed by by plaintiff's own allegations and so it was of all of those reasons you know again putting aside whether or not there might be a future case that presents a closer question as to whether or not section seven hundred and four is a cause or the cause or about for cause of some injury this case the facts of this case i think pretty pretty clearly show words to say you can protest all you want but we're going to place the tower wherever you don't want it because we can't listen to your protests you're saying that's not injur but from where i sit what i hear you saying is is essentially that the mere fact that you just probably can't listen to the objection or can't consider the objection honor that's right and les there's are some additional facts to suggest that that there would have been a different outcome if those concerns had been raised again to focus on what plaintiffs injuries are here you know plaintiff's injuries in this case they make clear are related to specific siting decisions and radio frequency emissions made by specific cell phone towers this is you know there's a prior litigation brought by these plaintiffs challenging these ordinances that was dismissed for lack of standing because they hadn't identified the that they didn't appeal that decision so there's not a decision from this court but they hadn't identified specific cell phone towers that were causing them injury they'd merely challenge sort of the existence of the ordinance writ large and so here i think a key aspect of plaintiff's standing must be linked to injuries caused by specific cell phone towers that are affecting their health in the ways that they allege well i don't that in the aren't they alleging  that the st is i think that runs right into sort of what was going on in clapper or that where that's a sort of chilling type injury where they're saying we don't want to speak at these sorts of hearings be out of fear that things we say will eventually be used by telecommunications companies if if a sighting application is denied and again their argument will differ and i think your argument is we want to be able to argue that that last question i think even putting aside even if this court was to find that there was standing on that's for fear that that merely arguing that you would like and again i like the plaintiffs have made very clear in their complaint that they have in fact spoken about these issues consistently for the past you know one thousand five hundred and twenty years those so this isn't a case where they're saying that they were actually chilled but even accepting the point that that that the mere fact that they would like a specific government state or local government to make decisions based on these health concerns was enough to get a standing i think you still have the sovereign immunity issue which which which i think i text issue and then i would i would just finally say that that the district court if the if the this court which reached the merits the destroyer correctly dismissed all of these claims on the merits because there is no if a citizen of santa fe goes before the city council or the appropriate zoning agency and expresses busy an objection to the consideration yes we do we follow the guidance of the f c c and interpret in back term the f c c is the agency in which congress has delegated the authority to regulate or further administer the telecommunications act and so we find that guidance to be persuasive and controlling on the city what kind i know that the f c c has offer guidance for what in environmental effect is it states that state and local governments are broadly preempted from regulating the operation of personal wireless service facilities based on our commission considerations thus for example a local government may not require a facility to comply with our of missions are exposing limits that are stricter than those set forth in the commission's rules and it may not restrict our facility authorized by the commission may operate based on our for missions or any other cause we know that the commission's plenary authority in this area has been has recently been upheld by the courts u and whether a citizen can at least cresent arguments at a hearing about environmental effects other words if a citizen comes in and says i'd like to talk about environmental effects  the city council going to shut that person your honor no the city council is not going to shut that person down and the city council has not stopped the appellant's down in in any of the cases which they presented information i view it i view the forty seven dollars u s c three hundred and thirty two dollars as basically carving out certain subject matter jurisdiction areas for the city to regulate within so we can regulate the zoning we just cannot consider because congress has pulled it out of the city's authority as preempted the city from considering the health effects and from the city's perspective there's an important reason for that the city is not an our exposure in the city about eternity the city of denver i realize my time is up and i thank the court for an opportunity to speak stand for any questions should you have any well i have a question that is that clause we're not going to pay any attention to what you say cannot be said to be harmless in the context of a city saying we're going to listen to our citizens about protest any all they that's not one of them it seems to me to say that the people have the right to protest is that to pretend that it could have any consequences is your honor in response to that i would say that that presumes that the comments have due process rights in being able to articulate an objection to the location of a particular cell with respect to the notice in the right to be heard again noticing right to be heard is in conjunction with a constitutionally recognized right to property liberty or life and i don't know that they've established that all right well we'll have to challenges to the state and local laws that issue in this case and that's because the preemptive effect of section seven hundred and four is really the threshold issue for all of the claims here all of plaintiff's claims are based on their arguments about the alleged environmental effects of our estimations but as the district court repeatedly emphasized section seven hundred and four prohibits the state and the city from considering those effects when it comes to siting small personal cited no authority to say that the state lacks the authority to to provide a forum at the state level for for challenging the citing of these locations generally the state for rational economic reasons decided to you know encourage the development of wireless facilities through the passage of the if you see a i eighty and to the extent that any individual property owner wants to challenge that the provisions of that statute they have the forum of approaching their legist their legislator and asking for amendments or appearing at any legislative hearings that may or may come up in the future on that issue argue in front of whatever entity is going to approve or deny the placement of a an antenna or a tower i think this court analysis is correct it is akin to you bringing a witness into the court and saying speak as much as you want but we have our ears covered  and i think that every one is very much aware of the f c c these preemptive powers and their willingness to make sure that everyone know that they end all be all and they're never they're there better not be a hint of discussion of environmental effects in any of the supporting papers is it is possible that the state and the local government are santa fe would not need to be added except that they are participants in already  following section seven hundred and four so the harm that they've already done is at issue here as well but but isn't i mean court and the f c c made it very clear that they were not a party to this the action and that any any argument otherwise would be  futile so i think that really we're looking at the definition of environmental effects and we're looking at the impact that that has on everything else and my time is done i'm so sorry thank you so