morning your honor is may it please the court erin her sig on behalf of the palin city of cincinnati i'd like to reserve three minutes please this case your honour's is about the limits of federal judicial power here the district court claimed expansive an extraordinary power to impose a contract on the city forcing it to remain bound indefinitely to the terms of a contract that had expired and that it no longer agrees to be a party to what's not indefinite i mean it's a temporary injunction your honor there's no end date in the injunction it says until for the court order we are now in august the injunction was entered in september of last year there have been no additional proceedings below i think that makes it indefinite and permit it and certainly the rule that the court is imposing here suggests that it could be indefinite that it appears to me to be part of a process of having mediation resolve all of this and if you want mediation to be to be resolved you can preserve the possibility that each side has something to give and something something to take in the appeal but it appears like you're trying to take something off the table but that's not the same thing as saying that the end of this mediation will mean that they're stuck in this contract forever i can't imagine anyone reading this record and say that's what's anticipated i can so for you to say oh this means that per that this is a permanent injunction that we're stuck in this contract forever is is just not doesn't seem to be a fair characterization of what the district court would say that two things are under one even if it's  first of all i would say about the record and the fact that it couldn't last forever the term of the one thousand nine hundred and sixty eight agreement as we call it was fifty years those fifty years are up in this contract has expired so there has to be something new that all is that months there has been no action below and i think part of why we are here is because we do need this court to break the logjam if because i think what you'll see in the record below although with it comes after court can extend the terms of a contract can impose a new contract essentially on the city of cincinnati without its consent after his it is expired that consent is interpreted to be partly for interrupting the consent is interpreted decree consent decree give certain powers and if one of those powers that is to extend the agreement then the consent comes in the consent decree not one crema so it's just sort of circular to say well th the consent decree can't be a basis for extending the agreement it was if the consent decree said that it could i would absolutely agree well that that's what we're there to argue about but it doesn't answer it to say well it was an agreement that expired express and say this is automatically extended it goes on forever now because of the consent decree says in order to in order to maintain the terms of the consent to create we've got it we we need some mediation and one of the things that has to be resolved is is the underlying agreement so that if you say low are going to take part of that and take it off the table it gets in the way of resolving this dispute  what i would say is the court already took off the table a very important part of the negotiation that would happen between the city in the county if if if the city if the court can keep the city in this agreement the county has no real incentive to negotiate that's evidence to get it six hundred and forty nine in the record where they've asked now under the same power for a takeover and we haven't had negotiations what we have below are two other motions pending one asking for well we're stuck under this and sixty eight agreement please tell us how we're supposed to operate because there were main disputes about that but to this motion from the county saying use that same power to allow us to take over the system what's taken off the table for the city  is the ability to say no we're done with this arrangement we get to move on to a new one now let's negotiate from that posture and so in my view your honor that's what the district court took off the table for the city in the st instance but how  imminent to impose terms to make sure it doesn't happen but no violation is imminent here there is no record to suggest that it is imminent here the court made no findings of fact here it did not describe it at all what it's concern was about the consent decree except to say that it wanted us to stay in this i'm just asking out of the as a practical matter what would happen if the agreement ended what would the kerry do what would the city do but i would say your honor is that it is a matter of contract law we go back to where we were in one thousand nine hundred and sixty eight we can have two separate systems are very good examples for how this works already the greater cincinnati water works as an example provides water service to the region and then a contract that's a framing of the negotiations is important and correct but i think in my view you're seeing it the wrong way in my view the district court put the king of the city at a severe disadvantage in these negotiations and part of why you can how you can see that is the fact that we are now ten months later the county has asked for a an even more drastic remedy and the city is stuck with that part of the challenge with the one thousand nine hundred and sixty eight agreement is the monitoring system and the rules and regulations that the county who has imposed that the city believes to be ultra pure is to be outside the one thousand nine hundred and sixty eight agreement and we are stuck with those right now it is part of what is causing the log jam between these two governments and part of what we offered and you see this in  briefing in the record was we'll keep providing service just as we are under all the other terms is that we are while we negotiate as long as we get rid of these ultra pure ease items from the county the county refused to move for this injunction that we're reviewing today but i think you're right your honor i guess i'd ask you to take a look at the flip side of it and see what's been taken away from the city by the fact of this ruling i think your honors i understand i'm not about her that the judge at least by what he said meant to say you lose on this money element of what that package deal is but rather it's still in the mix and i asked i want to keep it in the mix rather than rely on it the other way  keep keep in the mix the idea that they'll continue to work together your honor oh i don't think that's ever been off the table it at this point that and the city is not saying it will stop working with the counties it's just that the relationship has to change and one of the models that makes a lot of sense is a model you see in this area and others where one government provides by contract services to the other the city though remains bound in a contract that it does not want to be a part of anymore but the court said page four of its opinion is there is no defect in the terms of the m s t operating agreement itself respectfully that's not a that's that's not for a judge to decide that's for the parties to the contract to decide the judge doesn't get to tell us whether our contract is good for us or not and that's what happened here and while i understand the you might say that it's not permanent that it might be preliminary it certainly for the city at this point ten months later with no additional negotiations and no action on these other items feels as though it is it is permanent and i do think you have an important role to play in breaking that law jim my concern would be that if you  end up with a decision that the county could read to say yes the court has the power to impose a contract on us that we that has expired and that we no longer agree to them the court has essentially unlimited power to continue to keep the city and whatever arrangement the court sees is most appropriate that's not what the has to be pursuant to the consent decree but the consent decree runner doesn't speak to how we comply with the cottage about this this city is an agent of the cite that in fact when that the way to read that properly is that it did not amend it what you're what you're really saying is that the two thousand and four consent decree amended the one thousand nine hundred and sixty agreement and unbeknown to the city you don't say that and i don't read it that way so you can say that's what it is but isn't that the implication your honor that that if at all it listens you're right they're trying to he's trying to get a negotiation he says there's all this stuff there's these various counter arguments and we need to work it out and you want to do something unilaterally which would give you a lot more clout in the negotiation and and it's not workable now would have to be subject to further negotiation so all we're talking about is the nature of further negotiation and i don't want to star the judge is thinking start relying on sort of rigid legal arguments to take certain things off the table for one party as opposed to the other rather than work them out and then the way that the way that you respond to that is to say well we're entitled to it so we want this now we want this off the will then we'll negotiate to negotiate right i mean you can't this thing can't go on like this right around and we've committed to continue complying with the consent decree and continue providing the county with the services it needs until it decides how it wants to proceed with th system but of course we when you mention that we rely on rigid legal arguments that's that's i think what we're here to do your honor is to look at the law as the head to the consent decree except that it's the other way around here are the nine hundred and sixty eight agreement comes st the consent decree is entered into knowing that it is a fifty year term in that it will expire before the consent decrees ever complied with by the parties so i think to say that language  a consent decree that you would rely upon to say that the parties in entering that consent decree understood that the agreement was going to and i think your honor just the other way around the fact that there is no language modifying the nine hundred and sixty agreement is important there is no language that refers specifically to the one thousand nine hundred and sixty eight agreement says it's going to continue for the future of the consent decree the parties could have negotiated that surely they could have said there is a reference to the agreement in section twenty eight dollars says pursuant to the agreement the city also serves as the agent for the car and that the only reference to the agreement in the consent decree they went in there assuming that it would end in two thousand and eighteen which it did and that the consent decree would need to be complied with there after the parties i've to me that there's not any mention of what would happen under the agreement given that your consent decree commits to obligations post twenty eight dollars teen it just a very odd that there wouldn't be something in that consent decrees specifically addressing what the what's going to happen in this agreement right and without that your honor i  efacto extension or there was some other terminations provisions neither the county nor anyone else has argued that it is in fact expired that the terminations has occurred and under normal contract law we would then be allowed to return to running our own system no one is arguing that we're leaving the county out to dry we would immediately violate the consent decree if we pulled up the gates between city and county limits and didn't allow the sewage to plus they had once argued that i think county has the permits and you'd have to get the permits the order should be affirmed because it properly the court properly exercised both its express and its inherent authority to extend the m s t operating agreement until mediated or litigated for two separate independent reasons st to prevent city actions that would have violated the consent decree and nd to prevent the city's attempt to secede from n s t and unilaterally modify the consent decree now those weren't directly addressed as to what those final outcomes would be instead as court correctly recognized judge barrett stopped it and said we need to have an orderly discussion of how this is going to happen and that's what he did when he extended that agreement now i think just a quick overview of the consent decree itself might help  sort of frame the situation since being entered in two thousand and four the consent decree has governed a single sewer system and it's defined in the consent decree as the m s d sewer system the m s t sewer system is the county sewer district defined there is ones who are system there always has been the consent decree is divided into faces we've just completed phase one of the consent decree in two thousand and eighteen at a cost of a little over a one billion dollars and in two thousand and six dollars phase two of that decrease going to start up in two thousand and twenty that's estimated to cost a little over two billion dollars in two thousand and six dollars so we still have two thirds of the consent decree to implement a real today's time cost of over four billion dollars and it's all premised on all county ratepayers contributing to the m s t assets in the m s t revenues now in two thousand and sixteen the county and the city asked the court to mediate this upcoming expiration of the two thousand eight hundred dollars operating agreement and we did we reached a resolution in two thousand and seventeen that we hoped would work all operations were going to transfer to the county the county would take over all of the  employees all we had to do was get a couple of minor state law changes unfortunately into that in late two thousand and eighteen about a month before this operating agreement expired we learned that the state wouldn't support our efforts so judge barrett was literally left with weeks to come up with the solution when we had previously spent years trying to come up with a solution in fact we filed our motion with only ten we tried to work it out of the city we said let's just extend the status quo while while we continue to mediate and the city really gave us two options its st option was we're going to leave m s g we're going to leave your sewer system we're going to create our own sewer system and we're going to take all your employees or we'll extend your operating agreement if you wave your contractual authority and your statutorily prescribed authority now the st option would have violated the consent decree and the nd option was illegal so we went to judge contrary to what mr herzog said there were facts before the court in fact the court had mediated this issue or the court had overseen the consent decree since two thousand and four it was our mediator judge barrett was our mediator he participated in everything with us we also submitted affidavits with our motion and he had a robust factual record before him he knew that operating agreement was going to expire he knew that the city had made at least three explicit threats to leave the system to consent to create assets and take employees and as your drivers recognized he knew a couple of other facts as well that we had put forth that the environmental permits are in the county's name that the city can't without an express grant of authority under state law from the county  expend any sewer district funds they can't collect sewer district funds it can't spend them it can't let contracts without our authority absent court intervention the county wasn't in a position to operate or staff the metropolitan sewer district and he knew that the nine hundred million dollars in debt that was currently outstanding could become immediately due and payable if the city's threat to secede and leave would become deal it's all part of the record just bear had that in for him and given this he said he was quote compelled to act for quote the necessary protections of the requirements of the consent decree he said the city's threat to leave was not workable and threatened the implementation of the consent decree and he said the three cities threat left him with quote no choice but to extend the m s t operating room and i agreed to drive it when you had asked if you had said you questioned whether this was a temporary one rider aaron said it was permanent you said i think it's temporary and i agree it's temporary judge barrett said we're going to frankly any decision he makes next is probably going to be based on what this court decides and one of the mediation is it progressing well the litigation aspect is mentored it's happened after the appeal  found with this court but the county did file a motion to to move on and find a permanent solution and that's currently pending before judge perry and although the city didn't talk about this we did brief this in our case this is this case is very similar to a case that you've heard before the loveland case and the city of love in case loveland was had one small plant in the m s t system it threatened to leave take assets out of a consent decree and go its own way and in downplaying that threat to you now the city ignores i think four things that were incredibly telling that brief in that case then it said the district court was the sole forum capable of dealing with loveland's quote attempt to secede said loveland's intent is to take back control of a sewage plant that repairs have paid to expand that serves other communities and would impact n s t in the consent decree it said loveland prior disrupt the implementation and funding of the clean water act consent decrees that's what judge barrett's face with the city was right then the county and the district court are right now is the board arguing any kind of a stop or latches here like that like they did in the loveland case we haven't had an opportunity to to do that yet your honor but i think you know to come around to that but you asked if the consent decree discussed the one thousand nine hundred and eighty agreement that it does just in one spot first the decree provides that the defendants acting through the m s d sewer system have overflows in the n s t system so it talks about mentioned anywhere else in the consent decree dealing with it is and we have a brief this to the judge yet but but you asked the question i judge bush the consent decree has a modification provision it's paragraph two point c and i says either the county or the city seek to name a successor in interest or assume any or all of their interests in or operating role with respect to the consent decree you have to seek a modification of the decree so respectfully even though we've not brief this to judge barry yet the city does have an out from the one thousand nine hundred and sixty eight agreement it's a modification of the consent decree otherwise i think the court certainly has a part extend that and to you briefly about though here we read it here but not before ju i would just like to make a quick comparison to the loveland case as well because the city's threats to succeed they pointed out to you that they basically blew that off they sa is nothing like this because loveland wasn't a party to this case but ignore that there's only one consent decree one sewer system that they're in this only as their agent in a comparison between the city then or the both said that they would satisfy their consent decree obligations and the court told both of them that their obligations extended beyond their boundaries and neither loveland nor the city found a motion to modify the consent decree given the consent decree in mystery assets and repairs inside city boundaries this case is just like lebanon but on a massive scale and seven valving a small single plant community of about ten thousand dollars people involves multiple plants in a community about thirty times larger than level and handling flow that the city has told you handles about ninety percent ninety two percent of all the flow in here respectfully judge barrett had to deal with this in the logical level and still stands can't rip apart the sewer system when two thirds of the consent decree still must be a limited reasoning is the same here and judge bear it properly act to prevent an emergency to ensure that any changes occur in an orderly fashion over time through the mechanisms established by the consent decree and that's all i have unless you have any questions thank you i think mr austerlitz argument points out exactly the implications of their argument he he the county says that unity is necessary for the consent decree to be complied with if that's true why didn't the party say so when they wrote the consent decree in two thousand and four the one thousand nine hundred and sixty agreement precedes it the case law that you have on these issues says very clearly that you don't just assume an amendment or modification by parties without them in fact saying something some point but i also agree with mr austin that i think now he's waiting for this court that said well he might not have seen the implications of what he was doing by saying just keep doing what you're doing but that is the legal implications that apparently in two thousand and four without our knowledge consent without a property that the city was bringing to the one thousand nine hundred and sixty eight agreement was only for the use of the sewer system they were not giving the property they were not getting it over it was for the use of the sewer system apparently that in two thousand and four without its knowledge without anything in writing without any word in the consent decree the city also permanently gave its property to the county without fair compensation essentially a taking and  unbeknownst to itself because if were never allowed out of the nine hundred and sixty eight dollars agreement then the county has our property too because the consent decree apparently is only complied with if we are unified  simply is backwards to say something that comes in two thousand and four amend something in one thousand nine hundred and sixty eight without ever saying so that's certainly not what the parties bargained for and consent decrees while they are many things are contracts and the parties use the words of the contract to govern their to govern their relationships mistrusting talked about the fact finding are the facts that were available to the court certainly there were many facts available but this was not a an evidentiary hearing and i think what you'll see in the short decision is no real discussion of what those facts are or an understanding or discussion of the issues that we have here today mr osterman points out the section three high he said to point c i think you meant three point  talks about what happens next that's exactly what we point to to say that yes everyone that signed the consent decree knew that sunday management might change and section three b and c give the court the ability to make those changes the city of cincinnati is not the level of case of st and foremost judge bush because of course there isn't the slightest argument which is what both the district court and this court hung its hat on but also because of course the city of cincinnati negotiated the consent decree and is a defendant in it it has made no effort to say that it will not comply with the consent decree and i think if you look at the declarations in the record below and our briefing you'll see that the city has said unequivocally that of course it cares about the clean water act and complying with the consent decree and will continue to do so so i don't think loveland governs this particular situation at all because the consent decree compliance is not at risk it simply is not the idea that the county put forward to the judge that the judge agreed with is this idea that there is unity in the system and it is forever unified the last thing i'll point out on the consolidation argument that the county makes in its briefs and here is that  if the counties argument is correct that the moment we signed the nine hundred and sixty eight agreement we consolidated into their system we also unbeknownst to the city in fact became permanently part of the county system so the moment after that document was signed the county could have taken over the city's property permanently even though we said it was just for our use you could have fire the city and put in a new manager and said thanks for all your assets thanks for your employees but we don't need you anymore if consolidation argument mean means precisely that no i should judge perry didn't get into consolidation but that's a nd reason why why the county believes that the lovely decision applies and that this decision is correct and i do think given the state of play here that anything that this court were to decide that suggests at all that the court has this kind of power when of course and consent decrees they're supposed to narrowly tailor their remedies to any particular violation that may occur and this is not been narrowly tailored at all i think any decision of this court needs if it if it if it wants to affirm what the court below did needs to do so extremely narrowly otherwise when you look at record six hundred and forty nine you're going to see what the counties next view of things is and you heard it here today that we are simply a unified system and the city really isn't part of it any longer i see that i'm outside my time your honors thank you very much