judgments and the canadian producers decided that standing to be reversed first this is the only case of which we are aware in which a trial court has found standing base solely upon an testimony as evidence this is a relevant and persuasive it's sufficient to carry the day on most points so i don't know what you mean when you say it's not factual evidence it's non factual and that as a result of that work the sales inserted export markets of north dakota we could increase in the sales in those same markets of the canadian we had a decrease that was in the past if you look at the trial  theory when somebody testifies that sales changed canada sales went down north dakota sales went up because we promoted north dakota sales that that's exactly the kind of evidence they did not present  unlikely that the money though not in any way altered the conditions of competition it makes no binding and the new producers presented no evidence whatsoever that the north dakota league commission was going to use the b yes that is not a standard to do the imports come in to do or quite did they first go into one kind of apparel and then that later they go into a second kind of account only when they're in the second kind of account within th time period that are relevant and they end up being distributed to this case the north dakota we commit is there actually any money in the account that if it worked and join or the victim of a declaratory judgment here the department would be able to hand over to the north dakota we commission how much money is in that account yes the answer that question is a matter on the one hundred eighty dollars so th when the question the rose is is a subsidy that is actionable it doesn't theos that no it's not and we're not here to do the district court didn't make any judgements on that anyway provided is background information and went on to the decided on the fact that sound principles of us law do do you agree that there's no longer standing with respect to lumber and magnesium yes so is it the case then that everybody agrees that we're only talking about wheat i believe that and you can buy one this is a trial court found i believe it's fair to say that it was likely that if distributed to the north dakota we commission that the money would be down or is it sufficient that there is a consequence a logical consequence to certain conduct that will bring about certain sort of  e sort of results for example we have i believe something called countervailing duties which is based on the assumption that on the mistaken that when a foreign government subsidizes it or testimony in north dakota wheat commission witness that foreign sales in certain markets of canadian lead had gone down and that the it's true that he was talking about something in the past not something that arguably was about to happen in the future but that doesn't necessarily make it irrelevant and i mean if if that were true i didn't see it was contradicted by any witness if it were true that canadian weak growers lost foreign market share and that the loss was correspondingly reflected as again on behalf of the north dakota w commissioned that was never spent if you go back to your yes if they're if they're in the business of promoting the work that totally presumably since it's a competitive global market they have to say something generally to the effect that north dakota we need is better than anybody else we therefore you people in career word is by north dakota we don't buy wheat from australia canada or anywhere else if that's what they're going to do with part of the hundred twenty seven thousand dollars then how does  distinction from anybody else as we i understand but the fact that they might also do some research that would benefit anybody doesn't prove that there won't be some harm it just means the harm will be less than if all the money was spent on from allied to all the money was of judge pokes points he says the defendants are the only ones who really will control these funds and so there will be the ones who have any evidence as to the way harm will happen and they can control that harm so i have to presume that there is a likelihood of injury particularly when their direct competitors i think i've just paraphrased page twenty here can you responded that you control kind of how you're going to take their profits and use them and so he our point there is that we understand his view on likelihood in terms of economic theory but until there's some actual evidence of harm it's too early to come in and argue that you have stand and indeed go back and we'll be hearing a little bit about this from mr garrison about the statutory barb issue but the whole scene here this is this is what is a somewhat frustrating looking at the lower court decision below sue because we're going to be seven years later give money to victims of unfair trade and and thereby undermine the reasonable maybe the purposes of the law the way i read it is no cause of action can be based on second one no one is implementing legislation because that constitutes the approval of the agreement but section one of the three want to for one of five in the whole rest of the act different legislation they're approving the agreement in the first section and then they're implementing the agreement by changing domestic law in all the other sections in fact the fast track concept was to merge both the approval of the treaty changes in domestic law why would it be sensible for the congress to intend that there can be known for submission of any of those changes the domestic on the side with promotion and research and other things it's going to get a little bit of money it starts to sound very attenuated that a group of canadian wheat growers are going to suffer some kind of quantifiable dollar  harm if the north dakota we commissioned produces some more cartoons that encourage children to eat bread some of the things that they do as a part of their promotional activities and it starts to get pretty stretched out pretty begin to see whether there was a sufficient basis for standing in this case i'm not i'm not necessarily suggesting that their argument is right but what i'm wondering is whether you carried the burden of affirmatively proving harm were all you have is one sentence by one witness that's totally nonspecific going to talk about unspecified export markets no numbers this is based on so i think in theory well yes in the sense that when you give subsidies to your direct competitors it is a bad thing and the congress has already taken here all the policy you would reach trying to apply for a case lot of the fact that this case in the proof here would look very thin shape shifting just slightly but only slightly there's no private cause of action anywhere authorized is there in the statutes are you referring to the cause of action in this case of course because of actually this case arose under the tree work but there's nothing specific in these statutes creating a private cause of action is there a private cause of action independent of the a p a independent of the a p a in these actions but i think it's i think it's would give to and then a straight of agency case in which we would seek substantial evidence in the record you're suggesting i take it that our job is not to look for substantial evidence in the record but just to determine whether the trial judge clearly in his conclusions of fact or factual conclusions which ones well i think specifically on it is the standard for prospective factual findings by the lower court when it's making its own independen of competition it comes down to this statement doesn't it is apparent the plane of sales may be diverted to a competitor that is better able to compete as a result of the bird m m distributions is that maybe a tentative  distinction between you all because as i understand their argument they want to evidence of actual competitive harm and your answer is we don't need that all we need to show is that there is a this is almost like a second appeal starting right now with you as the backup seems to me to become more front and center as my realize your compatriots fall by the wayside and we quit eating buns  their rights in force and so if it turned out that our colleagues for whatever reason chose not to bring the solution canada still should be advised to do so and that's and that's essentially why we're here and therefore now remember this to keep in mind is that there is not one word of defense for the decision the court of international trade on the issue of standing their argument their words that we've looked at a particular remedy and everybody recognizes that that's not an available word and so the question is is there any basis for canada putting aside the issue to be able to go forward here it's quite clear that three one section four zero eight provides us with a specific remedy and massachusetts versus the united states says when congress become a part of the us domestic arrangements and congress delegated customs just as congress or the e p a in massachusetts why isn't it a remedy did then to go back to the w t o and say they didn't do what they said they do that there is a remedy this that would support the idea that congress contemplated the government of ten years separate from canadian private parties coming into u s courts to enforce compliance with the requirements of opening records to foreign government to bring suit against the customs and border patrol people here and if it is unusual wouldn't you expect the congress to specify that's what they want to happen here th complied with the question is who gets to enforce only private parties or also the government of canada or potentially mexico this is she's just a shell of that's the key it doesn't say for always for the private producers i mean i think you don't think we're certainly not made either derivative arguments from the private entities no no no i'm not i'm not suggesting peter i'm just trying to figure out whether there is some monetary harm suffered but i would call that a significant invasion of the sovereignty it's a why it's as a legal or political matter it's huge but what i've kind of see is whether there's also a monetary or economic discernible harm suffered by the government the sovereign power being mistreated by another sovereign power and claiming that our ministry of procedure act is you entree to the federal courts to vindicate that standing i think that is precisely what i mean to be that adjudicated you know with respect to for a way through to get to the merits i think it's this is least worth pausing for two seconds to recognise united states as advance completely the argument with respect to the underlying merits of this case and i think that reflects  rather rather than answer her question i would have asked that very question as to why they didn't address the merits because when we get all through with this god forbid we should find anybody with standing we're going to have to talk about the m my trouble with the merits of this case is my question is and maybe i need to address this misstated since i'm like i need to understand a little better how the money that is and then at the appropriate time when the domestic industry comes in and says you know under the section i get x dollars they go in the lockbox and they peel off x dollars what does that money go into the general treasury which is what the statutes and general accounting for the government seems to call for in which case i'm wondering why this is a tariff act at all i'm wondering why it isn't just simply a straight forward get that opportunity then they never draw it they never pull the trigger the trigger is if you pull the trigger what's dead is this whole case because this is an appropriations act then a there is no standing on anybody's part and special funds are allocated based on qualifications that producers have to meet i mean we're not talking just about i work for the appropriations committee wants we put little line items and all sorts of things but we couldn't do this  then judge folks who do watch with us as we go forward depending on sort of what the status of the in view of the fact that the c d s so it's been repealed and that most of your clients disappeared well  if you are relying on the promise of the u s government to comply with or owing in the future sounds almost like you already have the release that you would want to give you a declaration they have to fall change two hundred years of government government dispute resolution without saying a word about it without defining the word person to a foreign government or even governments well his argument  it was a united states senator in the other case the other case concerned documents obtained by the u s government concerned the government of mexico so foreign governments were involved in those cases but in either of those cases did the courts and our whether foreign governments may come into the united states courts and assert causes of action challenging united states agency final action under the administrative procedure and can i was correct it's reasoning would not be limited change the way we resolve our disputes with foreign nations that suddenly the door would be open so that foreign governments flip green challenges under the administrative to see what congress did say in the  mechanism preserving sovereign to sovereign some circumstances but as lawyers i wouldn't be quite close tries to discover something congress did and perhaps unintended consequences you've never seen that we've the e p a to sue the u s customs and border patrol people have done something allegedly illegal and that's fine with congress any corporation any individual what would the logic  but not the government because you have other problem with private parties also have other means they have business arrangements they compromise and settle disputes all the time that doesn't mean the courthouse door is necessarily governments which are usually political through our domestic courts we call them through diplomacy through international institutions high her vital unity to foreign governments canada can't be sitting here let me ask you this while you're a while while we have you before you what is the government's position on the merits of this case visas either the producers or the canadian government injunction of course we don't think it's just for the reason that you didn't say that but you did say you didn't bother to tell us you don't think so that we don't think that the court should do it hurted injunction