the casino and the enterprises that are being affected by this competition it's not only an economic issue however it's also an historical cultural and environmental issue that we've we have a also requested it in that in the absence of an injunction that the issues be remanded to the interior department for further review so that they could follow the rules and apply the procedures properly there's two issues here before the court today  is is whether or not this was a proper application of an exception to the post nine hundred eighty eight prohibition on after acquired properties for gaming we believe it was because it was an offer as a base an acquisition that required government approval the second issue is we believe that interior failed to do its duty to take a hard look and over see the chickasaw agency environmental service agency and as a result they blew past numerous requirements as an example or for example it let's say that property is acquired to construct a reservoir or but the permit it has not begun applications for permit and not begun is the mere accusation of the property enough to trigger the application of the statute or due parties have to await the application for licenses and permits in actually submit plans of construction for review before it's even an issue that's very good question the supreme court answer that patrick when the government and they continue to put in their brief that one taking land interest is separate from the determination of whether or not you can game on the supreme court said no it's one decision everything happened in one day so our answer that would be is that they have to be truthful about what they're going to do with we believe we believe it is one that specifically at least for gaming yes because they have to do an environmental assessment if there's no change in use and we pointed out were dozens of these happens without any environmental assessment and that environmental assessment has to be accurate and there has to be plans for that for the project included are i want to take you off your good herd and i would like to reserve a couple minutes of my time at the end of possible for a bottle but these you hear is  ask about framing your argument are you challenging the the regulation itself because it doesn't require checks on nation to  governmental jurisdiction over the land before it's taken and trust or are you arguing that the secretary improperly applied section one fifty one three because it requires that the land be under tribe interesting action i'm a little unclear on whether it's a challenge to the regulation itself or it's a challenge that the application the regulation it's a challenge to the application the regulation that the land must be under governmental jurisdiction tribal government jurisdiction before it's taken into trust the regulation in two thousand and eight does not say that the regulation in two thousand and six which was publicly commented upon did the regulation two thousand it was never commented on however the regulation in two thousand and eight mirrors the reservation regulation which was published the same time for those two ninety two right twenty five  to ninety two former reservation version the two thousand and eight version but our position is that version has to be applied in context of the statute and because it latter announced again that sounds more like a challenge to the regulation well because if the regulation doesn't have the requirement in the text of the regulation i'm not sure how you can make the argument that it was misapplied it seems to me to argue it's contextual comment whatever and you're attacking the regulation itself were not attacking the regulation had then where's the language in the regulation that supports your position the language in the regulation is that it is that the regulation is exactly the same as reservation and reservation doesn't have jurisdiction in it either yet both of them are applied to require jurisdiction when acquiring land and that's why they were treated equally in the statute is reservation is defined under one fifty one point terrell parcel was part six on nation former reservation is that not true no as part of the chickasaw nation boundaries last pantries that's different than the then the legal context of former reservation which requires jurisdiction and if i give a little context your honor please twenty seven zero three of a group was passed in creating a new category called indian lands which was supposed to be a subset of indian country indian lands was both a reservation and indian country land trust restricted for a tribe remember in governmental authority it was not reservation or so it was created as a category because they want to take them i think one of the questions right i mean in order to stab this is that the reservation there had to be something in the first instance that's correct but with it after the murphy decision it became relevant as whether or not it was still a reservation and if it's still a reservation then the question becomes is it an indian country reservation and the united states but in its own makes for even that case that it even if it's at page fifteen even if it somehow an indian country reservation it i mean a reservation is not inning country because if they don't do not exercise governmental with the worry over their reservation and so former reservations and reservation are two separate issues but the point is is that is that a group was creating a subset of indian lands because they didn't want casinos or were they wanted to be were indians living on a reservation and trust restriction for tribal member in oklahoma the only category that met that definition on october seventeenth  c of part one to ninety two point two yes but what about that that is the gaming application of the definition of formal reservation we believe that has to be applied consistent with the statute which makes it be treated the same as a reservation and since reservation required there to be jurisdiction dzhokhar under this exception because remember they can acquire as off or as a ration the governor can approve one approve all the time under separate context slowly so that i could absorb the argument is that the only thing that could have been acquired post nine hundred eighty eight in oklahoma under this exception was an allotment to because an allotment was not a reservation under twenty seven  three and because it was an allotment to be there for became eligible to be a former reservation they can they could get this property in trust and they could build have built these five dozen casinos that they built separately with governor approval but what they couldn't do is declare the whole state a rip affectively reservation by claiming it was former reservation and allow one hundred twenty casinos to be built half of which were acquired post nine hundred eighty eight not of but which went through the gaming process were the need for process and that's the issue is that it was to be restricted that because there wasn't supposed to be a land rush after nine hundred eighty eight for new casino sides so they reservation for purposes of the gaming at let's correct the allotment is not a reservation because a mustang case in oklahoma said there indian country life if you want to see but there are not a reservation the also can you shed some light on this it please the court and good morning and i katselas for the united states as a preliminary matter comanche nation is here seeking a preliminary injunction which is extraordinary relief in the normal course and the injunction that it is specifically disfavored because it would require the recission of a trust acquisition and require the secretary interior to take that action and comanche seeks this because it fears that a gaming operation operated by the chick struggled with what exactly the argument is and you know we think it's one of two things one that the secretary misapplied oklahoma exception in the regulations implementing it to the terrell site or that the regulations themselves are invalid and i'll take those two points and turn i've heard my my friend my posing counsel talk about twenty seven of three and a lot minutes this morning  none of that is presented in the brief and it's waived this twenty seven argument they seem to be making an argument about section twenty seven a very indian lands that's a different provision that has not been briefed erased so we'll take the arguments that were raised in the brief judge matheson to the extent they are challenging the regulations which it does sound like they are challenges  challenging the regulations just to cover all bases but to the question to the to the issue that they have said that they're challenging the application of the statute and regulations to the terrel site there is absolutely no question that the stat ute and regulations were correctly applied this is this there's no even need for a deference analysis here because the statute and the regulations are clear as day that governmental jurisdiction is not required governs the permissibility of gaming on indian lands it does not restrict it does not govern it all the secretaries trust acquisition authority they are separate statutes the secretary often makes these  determinations at the same time and he did that in this case but they are separate analyses the indian or where it is ation at governance trust acquisition it confers very broad discretion on the secretary to acquire lands and trust within or without existing reservations so fred a first point comanche is barking up the wrong statute it just isn't relevant here to the question of trust acquisition  now going to the permissibility of gaming before you get to that when the secretary decides to take land in trust does that bring the land under tribal governmental jurisdiction it will get there's no question that trust that is insufficient for governmental jurisdiction that's well established in the law there's just no dispute about that we don't argue we don't understand the comanche disputes that so to clarify as it as a statute operates gaming can occur on lands within the oklahoma exception there is governmental jurisdiction because the exception only applies to trust plans so upon the trust acquisition there is the governmental jurisdiction so there is governmental jurisdiction for gaming for game before any gaming occurs that's how it operates so that sort of another reason why it doesn't make any sense that there would be a governmental jurisdiction requirement here because the statutory provision on which command she relies only applies to trust lands there's already there's you know there's no it's a the exception is limited to trust prior to the social lenders jurisdiction well this this is that's a complicated matter and judge mathis and as you know there's here that this is within the boundaries of the chickasaw reservation so appalling of the former reservation there's no question that it's a former reservation and there's no you know there's no factual dispute about whether this was was the reservation and there's also no dispute there seems to there's no dispute that it meets the definition of former reservation that the secretary promulgated that has the force of law you know this is this is again there's just no there's no governmental jurisdiction requirement yes the secretary considered it in a proposed rule in two thousand and six it did not adopt comanche seems to be arguing that they should have applied  a definition that was never adopted rather than the one that has the force of law that's that's it doesn't make any sense so there is no question that this meets the definition of former reservation and therefore th gaming is permissible on this land under the grow as exception so you know again and the fact that the secretary considered a different definition this really has no relevance to the court's analysis in the case it's not an inconsistency there was never another definition promulgated there was no change in position because there was never another definition actually promulgated and of course even if there were that's not a basis for a lesser standard of deference under and less under f c c fox there are two requirements are met one is that the new definition rests on factual findings that contradict the first position original position and the second is that the new definition up and serious reliance interests so we're not here again i think you know your honor it's very clear here that statute and the regulation were correctly applied there's just no question i mean there's not it's it's just absolutely plain that this meets the definition of a former reservation under the statute and under the regulations that were actually  applied so there's no misapplication of the law command she has abandoned its argument argument that it's challenging the regulations and in any event you know the time to challenge those has long passed as the district court correctly found  you know on the need but point you know we don't we judge this era nothing further had to happen for me here but you know comanche didn't actually argue an remand for the secretary to consider it we don't we don't think the constructions are deep compliance prior to the construction yes there was an environmental assessment performed and a finding of no significant impact there's an e t a we attached all of this t we just gone to the merits in the district court the full administrative rights i just i'm i'm really not clear on your response to the bootlace question maybe the case is a whole there's and running was there any is there any relief to be have on a preliminary injunction well your honor i i think that they're there so could be because i think that you know they're they're seeking a recession of the trust acquisition now we think that they're you know one we think they're in the wrong statute because it doesn't govern that but we think that that could be you know there's a lot of thinking what's what's your best case for the proposition that once the casino is actually built that the the request for preliminary injunction remains right i mean it seems to me like a non sequitur well i don't have a case at hand on on that point your honor i'm sorry  i just on the need you brief several points including whether the analysis was done properly but don't you also make an argument about standing  standing we've contested what used to be called credential standing the supreme court has called that a misnomer we can refer to it now zone of interest we're not made in article three so this is the lexmark yes lexmark this is but we think that you know it it's very clear that they have only asserted economic harm you know they have not asserted any interest in the environment or natural resources of the terrel so i have not asserted that they will be harmed by the construction that those interests will be harmed by the construction of the site and there are many cases that are clear that this type of harm standing alone is insufficient because it's not  perhaps we should have given that a bit more you know it's our understanding it doesn't move the case and you know in my understanding it wouldn't move that necessarily but perhaps i didn't get that sufficient we didn't get that su n but i think you know that you know apart from that ground it's just so clear that they are you know flatly wrong on the merits the district court was clearly correct thank you your honor with respect to the remedy we requested that there be an injunction against the opening the opening has occurred subsequent there too we also requested however that it be remanded to the b for further proceedings and a lot of m of the fact that we don't believe that they followed the environmental rules when they did their knee but document it with the further proceedings be above the further proceedings would be cancelling the acquisition or well if it was if it was if it was acquired in violation yes and i point to the patrick decision the government again there said that it's all done on the same day it's one payments of the land use committee and they also said that the government should be held to the full letter of the law they violated any other facts or else that she related to federal lands i was made zero decision by kagan we think that's important that if they blew by and look this is against the backdrop of one hundred  twenty casinos in the state sixty of them are required under this exception but none of them were granted an exemption for this exception and another in all of them were granted categorical exclusions underneath that's in the record forty of those are in the record this one we believe use is another misrepresentation because it is now exponentially bigger than it was claimed to be in the environmental assessment and they didn't even build lagoons on site they built them off site closer to the river so they can expand it into  destination resort so you have you know you have a situation here where there's dozens and dozens of casinos in the state that never went through the process against the backdrop of patch act because it could finally be challenged they pretended to follow the process but was respect environmental reviews which she points out they ceded the entire responsibility to the local agency of doing a hard look there was no consultation to the tribe we got no real notice they published their hometown and in texas so we got no real notice at the same time they were doing the same all over the internet they were required to consult on trust issues that's economic anything that affected our trust issues which this was in  protected interest because a great was within the forty five mile high level in the compact that obligations to the historic preservation act that all geishas to consult on nagra they did none of this there was no meaningful notice the record decision and took it into trust anyway and so and then there was no proper notice of the acquisition within thirty days they started building the casino four months later and didn't put it in the federal register till sixty days later so we were behind the ball fall twenty nine days later we tried to get the injunction it was unsuccessful but sign time we asked the court for a read man to look at all these issues especially in light of murphy and in light of the fact that we believe it was offers of asian acquisition that can only occur with the approval of the governor because their interpretation of the statute again turns entire state into a reservation but back to the judge case question isn't the relief you see at this time is what is really know the relief we sought if we couldn't get the injunction was remained back to the agency so the agency can really look at the issue remember this was issued on the last day of an administrat issued back to the agencies they go look at the issues of whether or not they file the fall of the environmental process and whether or not in light of the new case and what we've alleged as to whether or not we believe the it had to have governor prove it was allotment and to see back to the agency to see if that was the position and when they when they they accepted the two thousand and eight regulations were not challenging that but remember that was never published for comment