decision that they're going to do a clean up so plan of the national argument that there's no action selected to challenge is moot i think at this point i'll concede that because in fact there there was a decision made to yet of course and i'm and in every case every one of those district court cases you look at you will see that what the planners have in almost every case the plaintiffs actually sued a federal agency and in almost every case they sued under federal law and in every case across the board they still took one of about four or five things to enjoying the clean up thinking people from doing it well to dictate how they go about doing it and what  have to establish that trust and that the case does not fit within any of the parameters that establish a challenge on this record i would submit that if that were to well that situation were to arise the first thing that these chemical companies would do would be to come back to this to remove again and say now we have a challenge because now they're undermining e p a s effort step back and look at the circle our regulatory framework circling dictates that they are going to investigate these sites they are going to look at them they will determine what is to be cleaned up and then they will either pay for it out of the super fund or they will have the responsible parties do it for the court and your judgment requires that the defendant is right next to the fire well you have to remember your honor that this they don't all in all of the property in the lock would the site ok so it's like most other complaints that are filed when it's not going to get everything you ask for well again i would say that they are asking for remediation damages that as long as you do not share the circle cleanup i would step back question about the challenge what i am saying your honor is in that section that you read d c they are asking for the cost of only remediate the chemical contamination a superfund site property they do not even own and answering your question judge when they are asking for that type of remediation damages that is the challenge to circle well yes you could just as long as it does not interfere with the e p a circle or clean up again this  is interference i think was pointed to a few moments ago on the questions to the appellant that if you get the money and you give it to the plaintiffs there's no guarantee they're going to clean up their property they could take the money and they could go to arizona that's what the district judge the magistrate judge indicated if i award this remediation damage you could move go to arizona twenty nine million dollars which is what they want would be gone there and maybe the principal responsible parties would not have the funds to do the cleanup you know the money is not unlimited your honor and what the e p a does is they come in and they do health assessment they look at this they do an investigation then they decide how the cleanup should be done to get the maximum clean up or the money and then the principal the responsible parties pay for that cleanup if you have wanted money to the plaintiffs they may not clean up the property they may take the money and not do it and they don't have the authority to go on the property they want to clean up the well number one it's not dumping chemicals on their property it's chemicals seeping into the ground water which nobody i think owns under montana law the groundwater goes under their property they have a well money and decide how to clean it up the cleanup should be left for the experts the e p a the montana department  i would say that circle is going up trump the state law if there's a challenge to the cleanup congress indicated we have to clean up these sites circle of indicators superfund site will get priority there's a health assessment that i sympathetic to the notion that we don't have a perfect right in my high school one hundred thousand dollars property thirty five pollution worse than they get ninety damages if they can take the ninety and go to arizona or if they wish to there's a wealth of ninth circuit case law that indicates you're not going to challenge the goals of the circle of clean up let me just step back again didn't challenge anything that circuit that e p a ordered if the p a is given an order and they were saying  no i don't believe it does but it was under designation shortly thereafter and by asking for those remediation damages you were going to upset the entire circle a scheme the only way you could use nilly decide how to do this you could be opening up a they want money and what are they going to do with that money yes they could but that's not the technical mechanism the typical mechanism is for the e p a to come in with its experts and you state agencies determine what needs to be cleaned up and you typically clean up where the contamination is located the contamination is located on the principle responsible parties in the rod that's brand tag and and deal let me just add for the record brant tag block this facility from dice chemical just for the record is clear  the in montana but what i'm saying around here is that plaintiffs cannot do the remediation they don't own the property they need to go on the property of b l and brant tag and drill down well trial lawyers bar a new way to just pursued the circlip cleanups this is something that is dictated by e p a they have the expertise they know what they're doing they have to go on the property of principal i have to agree with the district judge below got it right he hit the nail on the head he knew what was coming that you cannot give the money to these plaintiffs and they won't clean up the site you have to conserve the limited funds of the responsible parties a then can have them do the work like my time is almost out any other questions before given the wealth of ninth circuit law on this i'm kind of surprised at the handles reaction to this argument  surplus cleanups and allowing them to proceed on encumbered by these activities that will disrupt the cleanup oh i'm with you there family that's what i'm getting at was in here saying we want to clean the stuff the defendants are saying  would fall back on what i tell me what in words or help you got it right here just that the goal is that you challenge the goals of the clean up it is a challenge to the circle of clean up if you talking at a higher level of generality i am talking to circle or until those cleanups have been completed that's why i think it's a useful case this cleanup has not been completed e p a has set forth i would should be done they've had public comments there was a public meeting they solicited information and they came up with think plan to clean up the property and they should be allowed to proceed with that cleanup and the principal responsible parties will then enter into a consent decree to facilitate that playing up i see no need to create this my confusion about this it looks as though resources not a removal action at all and it has nothing to do with whether a state you were right your honor i was not citing it for the jurisdiction i was fighting it for the challenge i think there are two issues do you have to get jurisdiction and then there's the challenge issue i was citing it for the challenge issue if you want to jurisdictional case i would refer you to north pan water authority again it's a district court case from the eastern district of pennsylvania about a lot of the court cases going your way and they're all i think founded on the practical concern that i  already told you i'm totally sympathetic who you want but i just find that what about the artful pleading doctrine i think that would give us a basis to be in federal court  they want to take the money for the remediation they want to dick they mean first of all to get the money in state court your honor they're going to have to stay here here's how the remediation should be done you should do it a d c d there you have to dictate a plan they have to put a price tag on it know i guess we're kind of on different pages here what i am looking at the big picture cleaning up the entire five hundred eighty acre site to do that you need to have a plan to remediate the entire site take into account all of the contamination and take into account where you're going to get the money from i think you're concerned over the plaintiffs wanting to clean up their small lot of propert correct your honor and i would have to respond your argument is that that the damage they are seeking is a challenge to the cleanup that's the best i can really give you on that that's precisely right your honor i could not a starter better i tried to say that i probably didn't get it out but you're absolutely right that is an issue and also i think it's the substitution of plaintiffs judgment or inexperience experts for that of the e p a that of the and you know those are the people that work on this on a day to day basis they know best how to effectuate their remediation at a super fun you may be right your honor but you're adding a entire layer of complexity to this right now as we stand here arguing about this the rod came out in august the next step is going to be for the e p a and empty e q to negotiate with the principal the responsible parties to get them to fund the cleanup now you know that is the most expeditious way to do it pretty easy way to bring the principle of the responsible parties to have done this to get them to make them clean it up then complexities here of ground water and how they move beneath the surface and it's not that easy to come up with a plan you have to factor in the public comment there was extensive comment solicited from the public there were meetings e p a moves at a rate to maximize the cleanup that does move slowly at times but i would point you out point out what the ninth circuit said you know in the case of mcclellan we recognize that application  section one one three age may in some cases the lay judicial review for years if not permanently and may result in irreparable harm to other important interest whatever it's likely hard such a possibility is for legislators and not judges to address we must presume that congress had already balanced all of the concerns and concluded that the interest in removing the hazard of toxic waste from superfund sites clearly outweighs the risk of irreparable harm that's already seven x thirty three twenty nine i think that sums it up congress indicated that circle i'm e p a needs to get a handle on these superfund sites and clean them up that preamps state law claims that would challenge that cleanup and the state law claims challenge it by asking for the money to do the cleanup to get that money the state law claims and the opening up a pandora's box for the trial lawyers to start doing these independent farms and dictating how the cleanup should be when e p a has no expertise in that area and they should be allowed to again i would probably fall back on limited resources limited funds you know defendants or not and i'm limited funds and he does not have unlimited resources to hire lawyers to go monitor these cases and state court realm of complexity to a system that is working fairly well now the goal of stuart law is to expeditiously clean up these hazardous sites and you're talking about adding a whole state court procedure where the e has to become involved you're going to lengthen do it now no i didn't mean you did it your question was asking about this realm where the state courts are going to get involved in this cleanup and judge are feeding indicate it took a long time now you add that state court procedure it's going to be a lot longer i think well i think it went back to something i heard the panel indicate at the beginning i was going to go into the reason for me standing here and that is the manipulation of the judicial system after brant tag settled with appellants they proceeded to do this interlock a korea appeal with no opposition they fully briefed it in december and then what did they do in january around are they sued granted ag in a mirror image complaint in state court not even waiting for this panel's decision not even considering what the lower court said that jurisdiction was in federal court they took a mirror image complaint filed it in january  well cooked trucking was indicated as a i believe the responsible party early on in the case i can't cite you to the record because the record is fairly sparse what's before you now it was on the removal issue but cook trucking i believe got letters from the e p a they were alleged to have engaged in some activity i can't go beyond that but they are in that case but it's somewhat troubling i guess from my part my clients point of view how the system is being used  well i think the money interest is the mirror image complaint which i alluded to and expressly indicated to you was filed in january of zero five right after the briefing in this case was done i mean it's i filed a complaint as a part of our motion to get in this court to present this information to you i thought the briefing was totally one sided when i looked at the record in this case and after we got that complaint which was never served on this by the way one of our co defendants read about the complaint in the paper and so we looked at it saw it was a mirror image of this one and immediately removed it and then we got the appellate briefs and looked at what was being done here but i understand your question your honor i don't have a good answer because technically we settled the case but our interest is in you know that the additional complaint that was filed which is the mirror image of this the same issues are in play i really think this case has major implications for how circle is done across the nation and i hope you carefully consider that because when i i read these cases for now i've been working on this case for a number of years plenty i guess the major client of our firm and i've been working with john ross for years on this case when you read these cases i've not found run not one case where they created this fund for private lead against to go ahead and decide how the remediation is to be done it is the e p a that does this case was for equitable relief the defend the plaintiff was seeking to dictate what happened in terms of a cleanup specific on measures and the court said that that's a challenge plaintiffs are seeking to do that here talked about by a number of courts and it's clear from the congressional record it's clear from the language in the statute it was that one thirteen was designed to keep polluters from using the federal  i mentioned earlier the plaintiffs have moved the court for a trust for this money to be used rightly by the p a to do exactly the cleanup that the chemical companies are saying and this would complicate or stall in fact like any company these companies would like to keep their money as long as eight not two thousand when i play and he came to came and looked at this site is projected cleanup is a twenty year cleanup will be thirty years from the time that these chemicals were discover about the plaintiff's potential liability i don't think the fact pattern here doesn't provide for any potential liability on the part of the plaintiffs it's pretty clear that the chemicals at the superfund site came from these chemical companies and from cook trucking the plaintiffs are just residences certainly they are under state law and that's it did not come from any of the my clients it doesn't affect their property  yes the chemical companies dumped these barrels just uphill you can look in the windows of my client's homes from where the stuff was dark it runs under the ground into their properties and they're injured by they bring state law claims where this case  critical questions of federalism though because congress starts so clearly to preserve the state law claims in the sections i just mentioned and in the congressional record and what this company has done is turned a section of circle that was designed to described earlier there's only one case that i know of on point