have not alleged that they have suffered any have nice the bar injury in fact as a result of the challenge zoning permit they didn't vote the haven look easy diversion of resources theory of standing of the courts cases require latest demonstrate both a diversion of resources and the frustration of the organization's minot's a lot of what i don't quite understand their jurisdiction are doing to your side is the one that removed in federal court and so if they don't have standing in federal court article three standing is there is an open issue in federal office or removal cases what you've said your honor is that the supreme court has said it has left that open as well but open is the upshot of your position that you can remove a case in which the parties have an actual controversy in state court to federal court must dismiss it because the plaintiff in state court didn't have article three standing in federal court and the case cannot proceed anywhere that twenty nine dollars discriminates unconquered federal contractors carrying out federal operations in exactly the same way that the court as the provision that this court struck down in united states versus california i the twenty nine dollars applies only to contractors operating federal immigration immigration detention facilities and neither plaintiffs nor the district court of identified any other provision of california law that imposes a general principle of avoiding constitutional questions if possible and here's the thing that most interest me in this case at least at the outset is whether or not the state statute was violated at all and i don't know whether or that's your responsibility or their city or or the united you would seem to be the united states is responsibility the city says it doesn't really want to argue unless we have questions so can you address that question for me i think we can your honor and just to be clear are we believe that there's not just one but three way to resolve this case without getting to the constitution and i kind of suspected that the government might make the constitutional argument why somebody so i'm sorry trying to figure out public eats it says it applies to a city a county a city and county or a public agency but we respectfully submit that the subordinate body of the navy cannot be public agencies the right so this is the question that i have is is there any case law that helps us understand what the word execution in the nd provision of the statute means  effect it's the same as it being issued and effective and and it's very clear from the resolution of the two resolutions approving our pup modifications that it would not be issued an effective until july you know petition to lobby to do whatever one does to try to convince the legislative body to not go forward with an action that is approved contrast the flipside of your city argument so what does the public agency do if if the city planning is not i would agency your honor we think it covers things like special districts water districts irrigation districts and to do like that that that have permitting authority is your basis for that well those are public agencies and they're independent of the cities that the and county and the county are basic point it is that that public agency can't refer and the district court did not find that the plaintiffs themselves suffered any irreparable injury the district court focused entirely on the alleged injury to detainees and the macfarlane public and th don't even attempt to bend that will invade instead try to reinvent of the same diversion of resources injuries that they fight for their standing but that's insufficient your honor because this court has squarely held in the national wildlife federation case and i'm quoting eighty thinks effort of each team that irreparable harm should be determined by references to the purpose of the statute being tenney please the court for the united states the state an issue here specifically to civil immigration detention facilities so on its face it singles out the federal government which is the only entity that operate such facilities and a place that has occurred on the federal government acting through and through with which it deals mainly federal contractors and it makes it more difficult for the federal government to run intergovernmental immunity principles most recently invoked by this court in the united states versus california case which is in many ways quite similar this is an impermissible discrimination against the federal government and  detention facility for federal detainees here's what you was do immigrant immigration detainees and they were exactly the same with the state statute unconstitutional  when before s b twenty nine dollars was in effect when it would have been subject to whatever the same scheme as detention facilities on average it took them about ninety days to get approvals and now there's a state law that standing we refer you to the party's briefing on standing and you can decide you know if you dismiss it on standing then on the issues on which we participated drop out you know the federal interest here is in in the  right we haven't we haven't i mean the parties have argued direct regulation to we haven't weighed in on that our position is that it should be invalidated assuming the court reaches the question on the discrimination are are because it  guess i get back to my question is the relevant thing facial discrimination or actual discrimination other words does the record let us know whether or not a detention facility that is not contracting with the federal government how you get your permit i mean i don't i don't know that i would agree that they're not substantive in the sense that if you want to permit to open a facility in thirty days because you had an urgent need to do so it's it's literally illegal and impossible to get that if you're in the federal government and it's legal impossible to get it if you're running a state detention facility so i don't know that they can be dismissed this procedural on this and no i don't mean to dismiss them as such i just meant that there were different substantive requirements being applied it was just a different process to go through and so i'm trying to figure out whether or not state facilities that don't deal with several immigration are put through similar processes are roughly equivalent ones or whether the record helps we are not at all i mean that's a question of the record there isn't there is a state law that's s b twenty nine that applies only to federal facilities there is no state law that anybody is pointing to that imposes the same or similar requirements on state facilities you is this is just our way of making sure the federal government is swept into our otherwise applicable scheme but nobody's made an argument like that as it's just not true what's actually going on is that they wanted to have a separate scheme just for the federal government that makes it harder if you don't need any of these you need any of the argument that you're making now or did you already finish it when you said this statute just applies to the federal government and nobody's pointed to anything analogous that applies to anyone else are you going at that point i notice you're going on and i'm thinking up what about this what about that maybe i have quibbles with some of the other things you're saying i don't know were you all done at that point or is it necessary also to win on what you're arguing now i'm not sure what i'm saying now is is different from what what you what you summarized so if the courts happy with what i've already said i'm happy to stop there standing plaintiff clearly in the standard for standing in this case there are as asians will be disrupted if the challenge facilities are to open as this court held earlier this year i don't understand i don't understand how it's disrupted it just gets an opportunity to do more of what it's been doing you don't even say you're short of money to do more of what you've been doing and i imagine there may be foundations that are happy to give you as much as you want to do what you've been doing or maybe not but the record doesn't say one way or the other in what way or it seems to me that you'd be disrupted if you had to turn from your mission to something else that's what one of the formulations addresses but in this case i don't understand where you're diverted from doing just what you always do which is to represent peace detainees so a couple of points on that your honor st of all in the standing declarations  this court in connection with a motion to stay which was the st time standing was ever actually properly raised well or see it alleges that the effects of the facilities would essentially overwhelm their organizations as currently constituted that overwhelming would impact their ability to meet the needs coming in and that overwhelm that is like a black friday sales sale at the at the department store it just means a lot of  customers no your honor it's more like i guess that we're using analogies sort of like an overwhelming of electrical grid where some things just don't get done not too many people in one place at one time trying to do one thing but too much demand  of what can get done what can't get done that's a significant point and i want to know what can get done so as to play with freedom for immigrants your honor this organization operates a number of  that expansion would take time and would take energy that they could otherwise directed elsewhere the organization has other priorities such as community organizing legislative and regulatory out of seeing and public relations concerning immigration detention that you might be able to show it that you have conclusively show you what's what's our job at this stage so your honor the answer that question is that it doesn't matter because this is a close case on standing if we look  ilistic standard of a collimator injunction filters down into the article three considerations and that's ok i just wanted to know i'm not sure just the answer let me ask you the nd question and it comes from my initial exchange with mr kirk  assuming there's no standing are you there after precluded from raising any claims in state court room relating to the state statute and i take it is the government then precluded in state court from arguing the state assumed it your your clients don't have article three standing let's just assume we find those two things ok what do we what do we do so on the assumption that those things are true which obviously we we don't i don't you know  conclusion as well settle the fact is that no court has ever reached the conclusion that it urges here the supreme court has held an international primate that this is an open question of the main case on which relies was decided two years before the supreme court explicitly held that this was an open question this court really has recognized in two thousand and one that it remains an open question and as far as i'm aware there is nothing suggesting the case can be removed pursuant to the federal office  under your theory you have standing any time the government apprehends any additional alien it's possible that we have then ding your honor but that's not necessarily relevant because not every time  can i ask you to switch gears for a moment and because you go limited time and tell me why you think the procedures here violated the statute it seems to me the most reasonable reading of this statu is it imposes an aggregate it least on the number of meetings and aggregate requirement on the city before the city can grant the permit it has to have two public meetings and the way you get there is by saying well the city must have to and each public agency must have two and why is that the most read reasonable reading of the statute so we think that's the most reasonable reading of the statutes because california law as a default matter distinguishes between municipalities and their subordinates entities such as commissions on that point you can look at provisions of the california government side of the great which basically say they are the separate entities cities and their commissions for purposes of the statute we're going to treat them while this well but i also find statutes that actually use the word city in its commissions or city and its departments and city and subdivisions and the statute doesn't do that and it seems to me the most natural way to read it is to see it is describing four separate categories a city a city and county etc a county public agency why does it have the i mean  just as a matter of plain english why is that the most natural way to read it oh we don't believe that's the most natural way to read it because we don't believe the planning commission is the city for purposes of s b twenty nine our argument is not the planning commission could never count as a city for any purpose however even if the court decides that the planning commission does help as a city that doesn't necessarily mean that the two meeting rule to not also apply in the city council and this goes to the facts of this case which is the an appeal to the city council uses the word appeal your honor that's correct but it doesn't function anything like the appeal from the district court does for instance there is no constraints on what the city council is this is exactly our point you're either of us completely independent so the city is in effect acting again it is acting separately it is acting and for the st time so the two meeting all should act again and separately for the st time now even if the two meeting rule doesn't apply  acquire again and again i'm not i don't i'm not pretending to be bryan garner but it does seem to me that the new ordinary understanding of those terms would be different so we need approval with execution because in interpreted to maximize could be interpreted to say what it says it says who it doesn't say at least two it doesn't say more than two it just says who and i just don't understand what you said a moment ago about the separate entity some thinking if i applied your logic to this court when we have a three judge panel and then a case goes i'm gong you would treat it as though or different court entirely kind of expansively so that it means one hundred and eighty dollars days each time and partly i don't understand your notion that it should be interpreted expansively as opposed to just meaning what it says and partly i don't understand your argument as i've just indicated for the same reasons the judge here which has raised the planning department isn't as separate thing it's just part of the city bureaucracy facilities less than one hundred and eighty dollars days after the planning commission's know this so either one of them that are to see approval what does that matter since the approval was just a tentative nothing happens when they approve it until the execution date and they could change their mind rather it's not true that the permits are not filed there is no mechanism in city hall for the city change its mind although perhaps it's a theoretical possibility contemplated by city statute to the extent  that the palin's are arguing that you know citizens can sit outside city council until it changes i suppose that's true but that's not a mean bone couldn't own a day couldn't open the city they couldn't open the detention centers until the decision was executed as opposed to when the approval was granted not true yes your honor although the difference between execution and approval here is somewhat artificial in the sense that if the sitting could approve the facilities five days after st giving  on its face is that however the city acts it can't allow the expansion of the facility until one hundred and eighty days have passed from the initial notice to give everybody plenty of time to do whatever it's going to do during that time period so there's an even under under any interpretation there's a strong purpose to the statute it means one hundred and eighty dollars days is going to pass from the time they notice this application until something happens so there's plenty of time to run your public hearings there's plenty of time for your run to court and do things so that there's a statue's not useless and that interpretation we disagree here your hon because this is a public participation statute and the opportunity for public participation and it's once the permits have been approved there's no other participation of the phase of execution there is no public participation between approval and  potential irreparable harm to detainees kovac it cetera but you are not suing as a representative of detainees as you just argued your argument is based on me problematic i mean on the one hand you have the government which has the authority to actually decide what the public interest is saying the public interest is to protect these detainees from the  nineteen virus by spreading them out more and on the other hand your organization which is not aleck did or pointed by the government or anything says the public interest is to keep them in the same facilities and not to spread them out more you disagree i don't see why it's overwhelming or clear anything like that that you're right as opposed to the government being right on what the public interest is i mean the government's position would imply that in order to advance organizational goals you're proposing to make a whole lot of detainee sick by keeping them cooped up close together so you could if you were with to do that one quick point on that you attorney said in litigation however other branches of the federal government such as the detainees transfers to the restricted to the extent possible of the state of california temporarily banned them in light of the pandemic and if the government wanted to quote on throughout the litigation and the judge actually got to hear both sides fully they might well have there was really no opportunity for me to do that your honor that's not correct the government not the government of appellants had time to respond so the us use the word applied to the federal government frequently and there are human and i think it is important to use the technical words here because a few twenty nine it regulates local governments it has the facts on private party contractors and then it has another layer of indirect effects on the federal government so that's just important technical distinction about what the law actually does and who regulates here another important things and the fact that a lot of us not draw a distinction between  counsel let me let me back you up to what you just said i want some expansion on it i look at the statute and i can't see where anything on federal is affected by it what words says it is that a city county city and county or local law enforcement agency may not or shall not enter into a contract with the federal government or any federal agency or private corporation the house or d came in the lock the tension facility non citizens for purposes of civil immigration study i can't think of any kind of circumstance where non citizens are house or detained for purposes of civil immigration custody except federal government activities with regard to detention of non citizens and so it looks like it's just discriminatory on its face because it only applies it only prohibits what fed what the federal government and its contractors may do to implement a federal policy it doesn't affect anything or anyone else so your honor i'm sorry i'm not sure exactly which  and if you are already in this type of contract you just can't increase the capacity of those detention facilities so on its face it applies both to contractors federal government as well as else the same as it affects the federal government what it does is limit the ability of the federal government to create detention facilities in counties that don't already have them or cities that don't already have them and limit them in the cities and counties they do and it's all about monsoons in detention facilities which only the federal government would be doing as authority to do well i think there are two parts to the answer and one is that the local governments did receive reimbursement from the federal government and that's why they did enter into those contracts but i think also importantly the legal standard to apply here is whether there is anyone who is similarly situated to immigration trying to ask various other people oh let's assume that i'm running a private detention facility i understand you're california most of them are legal but i'm running a private detention facility for a county  do i have to go through this process to hearings before the city no execution of my expansion permission for one hundred and eighty days so yeah the given what's legal is not at this point i would say i am here and i have to meet and to tell you what you've done is is eliminate the class of those people who might be serving people other than the federal government by saying you can you can't operated tension facility in california as a private contractor so we only so that class of people doesn't exist right the problem is that we're talking about a couple different lot here i think at this point and that's why it's a little bit complicated ok so to st let me just ask a question in stages are is there anyone in california who operates who are the governmental entity who operates a detention facility that other then people who are operating those facilities in order to detain immigration people though are you referring to private is some grandfathers that's here would be to some what percentage of contract entered into before the beginning of this year ok so as to that grandfathered group if they want to expand the number of people that they have in their prison they comply with the requirements of this statute they would not but i think the reason that that doesn't matter here is because they are private prisons are not necessarily similarly situated federal immigration detention facilities on their face there they're different facilities they serve different purposes and i think another important point so then again then if you're right you have a statute that only applies to federal immigration facilities because by your definition there's nobody else that falls within the statutory coverage if that's true why isn't the government right well they're called reasons because why and again under s b twenty nine dollars there would be facilities under contract with the federal government so this seems to me that's not any different than facilities operated in order to aid the federal government in housing detainees sometimes they contract with the city sometimes they on so what's happened is voluntarily the local governments who were in the business of this have gone out on its face and that's just that's just kind of incidentally what happened after that was that it was plain i'm on its face they retreated say unexpected so this only applies whether it's a city or a private entity to people who have arrangements with the federal government to house detainees is that a fair statement i think that's the st thing and man for discrimination and st of all the national know this is not necessarily something that is only a federal activity there's a lot there are also there also is conduct involved of the local governments themselves so it's the state regulate the most direct regulation that's a part of this is regulation of local governments so you can't say that this is purely federal activity that's being regulated the next part is that under the president of washington versus the united states in that case for example applicable in these situations when it comes to the intersection of state federal law there's also preemption so when we're talking about regulation of something that affects the federal government that's what obstacle preemption is for is to say wonder whether under your argument if california passed a law that no federal federal income taxes may be imposed on a californian that would not discriminate against the government because there aren't any other federal income tax collectors except the federal income tax collectors so there isn't any group to compare to for purposes of deciding whether there's discrimination among  entities similarly situated the argument california could prohibit the federal government from charging collecting income taxes in california the reason the company cannot do that is because i would clearly be directly regulating the federal government which is the other problem of the intergovernmental community but they could rephrase it and just say no californian shall pay federal income taxes to the federal government then it would be more analogous to this law i think in that piece there's i'm not entirely i have to think about that a little bit but i certainly think in that case optical preemption again would be the very clean to break in because i was not school the federal government and in north dakota the report even talks about how basically intergovernmental munity only has points number one radians your question is no other end except federal immigration facility are subject to as the twenty nine plain text says that and while it's true that there aren't any state and central valley up until be end of last year the beginning of this year we're operating as a california state prisons under contract to california and ethie twenty nine not applied to if the court has more questions i'm having entertain them otherwise i don't have any further received my colleagues do recognizing that it's almost eight o'clock on the east coast we thank all counsel for their insurance today and their good