indicated in its opinion that it was retaining jurisdiction but i want to let you all know that the panel was offered the opportunity under the rules to accept that as a come back case and declined it and therefore there was a random draw for a new so if you have any questions i gather by the filings there were some questions about that that's why that occurred in  defined cannabis buyers cooperative with its director geoffrey johns were designated as the authorized medical cannabis provider association to enforce the program the ordinance provided that for this civil or criminal liability under the act to any duty authorized officer of any state or subdivision thereof who shall be lawfully engaged in the enforcement of any with controlled substances and there is not a requirement that that law be consistent with the controlled substance is the primary problem as rosenthal how do you distinguish that  cultivating marijuana did not compel anyone to do with anything or refrain from doing anything the court filing in first months as compelling compliance with the law cannabis provider shall influence the provisions of this chapter including of course in its purpose of ensuring that seriously ill californians have the right to obtain and used marijuana for medical purposes carrying out this mandate the end of certainly are compelling others to done or not do a number of things first of all they have to determine whether patients are qualified whether they have the requisite authorization to use medicinal marijuana they have to determine if they have the requisite identification card to properly identify themselves in a patient or turn them away if they don't they must determine whether the rosenthal court also expressed its agreement with the district court's conclusion that rosenthal's interpretation of the only provision contradicts the purpose of the  forcing those determinations i offered the court supplemental authority this morning a case that just came down from the first district court of appeal in california last week presenting the question whether federal law we're delivering controlled substances and the court said you're not violating the federal law you have the only under the federal law the federal law says as long as you're enforcing california law related contradiction between the federal law and the state law and in fact they cited and relied on ninth circuit authority they said our conclusion in this regard find support in the case of highland residents who kuda there of the ninth circuit not allowing felons to carry guns is not preempted by federal law prohibiting such conduct the court reasoned state law has no impact on the legalities of the same act under federal law  congress has chosen to prohibit an act which i why he has chosen not to prohibit there is no conflict between the federal law and the state law on the same thing can be said here there is no conflict the federal law says you can't possess or distribute marijuana for any purpose the california law says you can possess and you can distribute it within a collective enterprise for medicinal purposes so both can stand without any contradiction the state officers don't have to enforce the federal law federal officers are not impacted by that by the state law at all so   that is simply irrelevant whether congress contemplated or not in that respect we would invite the court's attention to the decision of the united states supreme court breath and what we have here is a statute that is literally pressed taking in its threats and there is no reason to read in limits that would abolish the immunity marijuana in question to the very club at issue in this case the oakland cannabis buyers cooperated it was in that very context in which this court considered the statutory immunity argument and what this court upheld is that that  ordinance does not compel anyone twenty four hours state law and therefore it doesn't come within the terms of the statute and in the alternative this court agreed with judge briars conclusion in the police officer would have a unity i don't think he would and i think that even to the extent that that somehow could be viewed perhaps says now coming within one forcing the oakland ordinance it would still contradict very purpose of this controlled substances act and i would point this court to the preemption statute which congress and acted which is twenty one u s c section nine zero three it said that congress didn't mean to occupy the field unless there is a positive conflict between federal and state law and that would be the situation that you would happen it's one thing if you have an state officer who was to say making a controlled purchase of a controlled substance because in that instance both the state law and the federal law would be in a court but when you have a state law that contradicts what federal law provides for then that  it would fall within the purview of section nine zero three and i did i would note that i think that my brother has even conceded that the alternative argument that this court rendered in rosenthal which is that this argument would contradict the very purpose they just disagree with that conclusion by this court but that doesn't get around this court's longstanding rule regarding starry decisis they haven't identif one doesn't need immunity unless one is committing a violation of the law the argument goes that you heard that that that's the premise so it doesn't matter what congress was intending certainly congress wanted to prohibit these of both perhaps state and federal law by making a controlled purchase but the statute itself also talks about lawfully engage and is judged by or both concluded in this case and in the rosenthal that has to be read in connection with section nine zero three and one can't be lawfully engaged when one is in fact a violin federal laws well i would point this court the the citation to the recent authority all this court then you would deal with the kind of preemption problem that the supreme court made clear in oakland cannabis that there in fact is no common law defense to medical necessity defense because federal law flatly prohibits the distribution and manufacture of marijuana absent very limited circumstances so this argument  it was addressed by the district court both in this case and in rosenthal and this court adopted judge briars reasoning and rosenthal we would suggest there's just no there to this argument if you're i'd be happy to address any of the advanced by any of the defendants in this case that there should be some form of limited or narrowed injunction because of what they assert to be delay and allowance of federal research but more to your point very it is and we've noted in our brief a federal research process and any we address it primarily in connection with the rational basis flexible process for research scheduling drugs when there are changes in scientific and medical evidence itself ensures the continued rationality now they do make the argument of course that the federal government has been but there are available mechanisms within the administrative process for the defendants to make challenges they could for example if there's a rescheduling petition that they think the federal government hasn't acted on they have the ability under the a p a to bring suit for agency action that's on reasonably delayed they can of course and they always have the right to file their own petition to reschedule marijuana i note that we're just one month away from the tenth anniversary from when these cases were first filed in january one thousand nine hundred eighty and yet not one of the defendants in this case has filed a petition to reschedule marijuana notwithstanding what they say is the clear and overwhelming evidence of its medicinal value now what the federal government has done most recently is they the government denied the most recent schedule rescheduling petition the it was pursuant to the statute refer to the f d a for a scientific and medical evaluation and that then surgeon general david satcher recommended that marijuana remain in scheduled one and the petition was therefore denied so i would suggest that it's not in the province of this court to make those kinds of judgments there or there is an existing administrative process by which those very challenged can be made which review under twenty one u s c section eight seventy seven in the court of appeals to insure against arbitrary governmental action and once again although we see and there have been there's been a lot of ink spilled about what they claim to be the  federal government's defects in the overwhelming medical evidence the f d a to date has not found marijuana to be sick safe and effective the d n a has not rescheduled marijuana and those decisions have all been upheld  challenged by the d c circuit i know let me just add one further comment on that judge bright and that is this the a value of the available administrative process is eminently rational because it allows for the development of ministry of record for a court to review in this case by contrast that defended her essentially asking this court to make its own determination of what the current state of the medical and scientific evidence is and what for example we've cited in our brief the sixth circuit in the burton in the green cases and the eleventh circuit in the middleton case and what judge briar said in this case is that congress has provided an available mechanism and if one wants to challenge the scheduling of marijuana then one has to go through that process but one can't bring it in the context whether it be a rational basis challenge or any other form and once again legislating in an area that traditionally and historically had been the domain of the states the states have always retained as part of their police powers to system the health and safety of regulations were not consistent with the federal regulations still have no control have control substance exact parallel to the federal controlled substances act but they don't agree on how every breath under the law should be classified there are state laws that put drugs on different schedules than the than the federal schedule and all of that doesn't create any contradiction or inconsistency in the state laws applied by the preemption clause and the immunity clause congress was trying to this traditional sovereign power of the states and the government has now arguing an interpretation that would strip this state have that  advancing research as to the medicinal qualities of marijuana and we contend that that is a relevant consideration and that the lower court never looked back and they never looked at all of the other factors that marijuana page twenty seven of our reply brief points out that there is a petition pending it's been pending since two thousand and three me when i wanted to do that petition but