my name is jonathan right bill from the justice department i'd like to reserve three minutes for rebuttal i'd like to start my argument by homing in on the statutory text of three o three d to the historic context in which the theory of constructive s submission of rows and the general principle that this and other courts apply when trying to determine whether a non discretionary duty exists that is traditionally enforceable the bottom line for purposes of this case is no date no deadline no duty and let me explain what i mean by that in our brief we cite to this to court's decision in our children's earth foundation a decision that was drafted by judge be cuing there this court rejected a claim that a different portion of the clean water act had a non discriminant non discretionary duty by e p a under the clean water act there was a far stronger candidate for mandatory duty than the provision here and that's because it applied to e p a specifically saying that it should take certain actions quote at least to every five years now one of the cases that our children's earth found sites too as foundation and guidance for the standard in there about a read only ascertainable judicial judicially church discretionary duty is your club the thomas a seminal case in this area from the d c circuit and the d c circuit explain the significance of a date certain deadline for courts to measure action against quote in order to impose a clear cut non discretionary duty we believe that he duty of timeliness and that's what we're dealing with here your honor the question of whether there was a statutorily imposed duty of timeliness quote must categorically mandate that such high priority as to impose on the agency a categorical mandate now why is that relevant here well let's go and look at the language of this statute three hundred and three d two it says each state shall submit to the administrator from time to time but here's the critical language for understanding the theory of constructive submission quote with the st such submission not later than one hundred and eighty days after the date of publication of the st identification of pollutants under the section for his approval the waters and benefit in the loads established under the paragraphs of this subsection your honour's this one hundred and eighty date date certain for the states to have stood up there t m d programs and to start submitting any team details is actually the key statutory hawk in the language that underlies the theory of constructive submission and i can refer to the th circuit system in scott specifically where this is shown the complaint that no t m deals are in place coupled with the e p a s admission that the states have not made their submission raises the possibility that the states have determined that t m d l is for lake michigan are unnecessary now later the th circuit makes clear that this is the key statutory hawk in three o three d t two when it distinguishes what it's dealing with in scotland from other cases where it didn't find a non discretionary nondiscretionary mandatory duty quote that holding it has no application here where the e p a has failed to act for years after the last state deadline for submissions has passed now it's important to recognize for present purposes this is the only date certain deadline in three o d d twenty three or three d two and it was this initial obligation to stand up t m d l programs and quote make that st submission of a t m d l i understand your position from the briefing is that the constructive submission can't apply if a state has submitted one is that right that's exactly right your honor and that's why it's tied to this language of the state to me as if in following up how many states have submitted zero pm dio's at this point none of the states have submitted zero t m t else your honor and what i'm having trouble reconciling with your position then is if you particular segment of a river you're off the hook forever under your position that's what the statute says your honor because the statute only has a date certain deadline to make that st initial submission position so what that this the it to bring you up to date your honour's so although this is not in the record what e p a has done now is they have prepared an exit updated model and other technical documents relating to the development of the t m d l they've had that information peer reviewed by outside sources they've also shared it with the federal state and tribal authorities and receive comments on those technical materials your honor they've also drafted many portions of the t and yell at this part but there are key details of course that rely upon those technical documents in the finalization of those technical documents there were main to be resolved your honour's so turning back  go ahead doesn't really answer my question i mean it gets part of it yeah all right so so e p a is drag is currently drafting some some guidelines or something that might be an appropriate might be the framework for a t m deal is that correct that's right and then and then what's going to happen once that once that they get all their it isn't terribly relevant to the question of whether e p a has a mandatory duty to act in the event of the state not having actually taken action yeah so you can i you can pressure argument really loved to get an answer to my question so i don't have an answer to your question your honor but whether that would be a good answer ok it would be responsive to what i asked you so but the key now with respect to the statute is what is the statute actually say with respect to what the duty is or isn't at this point and the language that applies now the team details have been quote st submitted is merely that states have to continue to now submit t m details from time to time your honor and this is a very discretionary standard both as to states and to the e p a now this is important to keep in mind because this court in the alaska center for the environment decision actually relied upon the fact that the duty or the alleged duty under the theory of constructive submission is one that only goes to a statewide level submission your honor because e p a argued when those that those plaintiffs lack standing in that case your honor because the had failed to establish injury as to individual waterways and this court said they don't need to show standard as to individual waterways because the theory of constructive submission doesn't reach that far it said specifically quote the act states his argument that there needed to establish standing to individual waters because the theory of constructive submission doesn't work reach that far quote their injury is the result of e p a s failure to comply with the with the c w a to position if a t m d o is submitted on one aspect on one segment of a river that meets the embryos for the whole that's what congress is statute says your honor and let me explain to you how that is so so if you go to this court and the supreme court's precedent as to how you interpret the existence or non existence of mandatory duties and the waiver of sovereign immunity in wild earth guardians you need to have a specific unequivocal command from the text of the statute is you right but it's instructive to actually read and look at the statute that was at issue in wild earth and how that standard was applied to the statute issue in wild earth and in particular this court wrote quote given section one hundred and sixty six a ambiguity we cannot say that the existence of and eighty four which is cited on page eighteen of our brief in particular the supreme court gives a fairly recent definition for what quote ambiguity means for a waiver sovereign immunity it means quote ambiguity exists if there is a plausible interpretation of the statute they would not authorize suit against the government no court of appeals has yet wrestled with this canon of kit statutory construction and this requirement interpret in three o three d to your honor but when you look at this statute and the clean water act as a whole it's clear that the e p a s interpretation that there is no mandatory duty here is possible because congress actually spoke with the requisite your position is also consistent with other portions of the statute certainly are so for example three o three i states specifically clearly and unequivocally quote not later than forty two months after october th two thousand so  date certain deadline each state having coastal waters shall adopt and submit to the administrator water quality criteria and standards if a state fails to adopt water quality criteria and the administrator shall promptly propose regulations control strategies that fails to submit language is expect is missing from three from three hundred and three d two there is no obligation for e p a to act if the state fails to submit your honor it merely says what happens if there is an actual submission but there is no requirement for e p a to it to act if there is not a submission and congress knows how to do that and has done it repeatedly if they want to have that obligation placed on states and then e p a to act instead congress has given the states vast discretion as to prioritize which waterways and which t m dales to develop at what period of time and then grant argued you've argued forcefully that we shouldn't recognize the constructive submission doctrine but what we do with san francisco the san francisco case haven't we already recognized that that is can this panel disapprove the construct of submission dr absolutely your honor under this court's precedent in order for the dictum of a prior decision to be binding an issue must be fairly presented fully debated and refined through the adversary proceeding the united states didn't dispute the validity of the theory of constructive submission it didn't brief this issue your honor you weren't presented in that case or any of these cases with these canons of statutory interpretation but we have a lot when we have the interpretation we have and it's a lengthy and so lengthy discussion there's a discussion of other of other interpretations not just the th circuit is discussing discuss the th we discuss district courts we embrace that we embrace the decision and then distinguish it because it actually didn't apply in that case well that's that's beyond that's beyond just mere dicta so to be clear if you  embrace all the prior circuit court decisions you should reverse the district court decision because all the prior circuit court decisions recognize this deadline which is reflected in the statute that all the theory of constructive  to the point of the obligation to actually stand up and start promulgating t m t else as a general matter but no court of appeals has ever permitted what this district court did here which is to begin imposing a mandatory duty and begin examining the intent of states as to whether they have a a a a desire or a lack of desire to abandon a t m d l and then abandoned and then  morning your honor brian hurlbut for columbia river keeper e p a could up point to a single case rejecting the constructive submission doctrine it's a doctrine that's been allowed around for a long time and every court that's considered it has either adopted it or at least entertain it as a possibility not a single one has rejected it as you noted the th intent circuits adopted it in the scott and he's cases in this court adopted it in the baykeeper  case most recently the only other court of appeals to consider it was the th in the oh that decision ohio valley environmental coalition and in that case they declined to rule specifically on whether they were adopting the doctrine but they applied it to the facts there and found no constructive submission had occurred because the state of west virginia had a plan with a date certain by which they were going to issue all the team deals that were it at issue in that case and the court there despite not deciding the  whether to adopt the dr not still signaled that they were likely to even in this kind of case that's not a state wide failure case like baykeeper because they're the court said well there's not been a constructive submission yet if the state has what it said was continued intransigence then that could very well change things so every circuit court that's looked at it it's adopted the doctrine or in the th circuit's case at least signaled that it may be willing to district courts around the country reach similar results that includes at least three cases where e p a made the same clear statement rule arguments that it makes here those are all cited in our brief and footnote five and include the kingman park civic association case out of the district of columbia as well as the others and you're right that the big keeper decision is binding here this court gave it reason consideration and decided the issue and that's all that the circuit requires to create is trying to add additional requirements as to what makes binding law on the circuit saying that it needs to be fully debated in argued before the court to in their brief or that is the u s b johnson decision to kozinski decision that was not adopted by the majority of the court and cites to u s supreme court case which may govern how that court views what makes binding law but has no bearing on what th decides make binding law this case deals with states who are simply not submitted measurements right this case yes they have not have done is worked together with the e p a in the early two thousand and two come up with a plan doesn't sound like refusal to me refusal right there is a refusal based on their inaction up till now and based on their lack of any plan to do to the district court to consider whether in fact there was no t m d l and said that if there isn't you may move forward and find a constructive submission unless e p a can come forward with evidence showing that the t m d l is or will be submitted  d l for every impaired water body and for every pollutant or criteria for which it's impaired so if the lower half of the columbia river had a temperature t m t on place the rest of the columbia in the lower stake would still need a temperature t and you know body the key difference between the bay keeper case and this case is that in baykeeper this court found that the state of california had a credible plan at issue there were all the team deals in the state of california and even though california had been slow to get started on issuing the court found that it had issued some by the time the case was moving forward and e p a was able to present evidence that california had a plan to complete every single t m t on the state of california within twelve years doing now let's just take it is a given that e p a is in action or in some activity at this point does that change the state's obligation the the state in this situation there's nothing wrong with the state relying on e p a to do the team deal for it but e p a can't give you a date as to when they're doing it they were unable to tell you whether they are the states would be issuing the t m deal and all they've done is mention things that they said were not in the record that he is doing with no clear end result as to when that will be again other courts that have excuse constructed submissions have found that even though there may have been some kind of long term failure there was a credible plan with some kind of deadline by which they could be held accountable and here that's not the case and like to add that without a t m d l there's been severe consequences in the columbia lower snake river the columbia river is the nd largest river system in the u s and eight the states listed the rivers is impaired for temperature pollution because it was harming it was exceeding levels that are known to be harmful to salmon and steelhead it's only gotten worse since then in two thousand and fifteen the river recorded the highest temperatures in modern times which led to serious trouble with fish trying to migrate up and down the river endangered snake river sockeye salmon only four percent made it up the main stem river to try and return to their spawning grounds failure and again an e p a in the states had a plan to work on the t l in the early two thousand there was a memorandum of agreement between the states an e p a subsequent letters and communications where the states  as a response to opposing councils three o three d two argument in this comparison of the language in that section that does that does seem to he pointed to i that we have we have some very firm dates if a state fails to adopt not later than forty two months even a stranger shall promptly that kind of language that's right yeah so it does it does appear that in the same that in the same statute that congress was very very specific about the consequences for st for state  about what should happen if a state fails to submit a team d l it's silent about that and courts have consistently looked at that and found that because three o three d requires e p a to step in when  no discretionary duty under the clean water act in that case which was not a constructive submission case and as the peace council pointed out in that case the statutory provision at issue was found to be ambiguous and this  court said that it required going through a regulatory and legislative maze in order to find a mandatory duty and that's just simply not the case here it's not ambiguous it seems to have just been some kind of assumption or oversight that congress clearly another th circuit decision in two thousand and eight that came out shortly after our children's earth and also involved whether there was a clean water act mandatory duty and in that case similar to here the court found that the duty that was at issue was not  the statute was silent about that duty that was at issue similar to the one issue here and it found that it wasn't plausible to read it the way e p a did and it found that there was also a man that you're a mandatory duty there another way to look at the clear statement rule argument other than finding that this does comply with the clear statement rule because three o three d clearly requires e p a to step in recognized that there could be exceptions to that rule and this court's decision and already see the e p a would would suggest that that's the case i'd like to emphasize that this is also a little different than other recent district court decisions on constructive submissions where there was an individual or subset of t m deals that issue the sierra club the mclaren case of the western district  washington and the environmental law and policy center case out of the northern district of ohio again those were constructed submission cases are courts found there was no constructive submission because they had found that credible plan in place to correct that failure and that starts with the st constructive submission case the scott decision in the th circuit it was in footnote eleven in that case that the court said even if there has been a prolonged failure you look to see if you can come forward with evidence that the team will be issued and since then in a baykeeper those are the same factors the courts have considered is there a prolonged failure and even if there is can we excuse that because there's some kind of plan in place e p a suggests you need to somehow discern the actual intent of the state which i don't even know what that means or how you would figure that out other than something like this how  long has it been and is there any plan to correct that failure actually applying a date certain deadline one hundred and eighty days the language of the statute that applies now that this court has to interpret is the time to time which is an entirely discretionary standard nd a court has rejected the constructive submission theory and our deadline which is now in applicable in this situation so circuit courts have from an early reject the principle in no circuit court has actually interpreted the time to time language they have but basically there's been a lot of follow the leader here your honor on the on the scott decision but the th circuit has actually rejected the expansion of the theory of constructive submission in the manner that the district court did i didn't say that they satisfied everything they satisfied the duty with respect to the date certain deadlines your honor with respect to the oversight to your honor congress's oversight i would submit that counsel for the for waterkeeper acknowledge that this is a plausibly ambiguous if not ambiguous statute if they're saying that congress made a mere oversight and can't point to actual specific language no date no deadline there's no duty here on ars thank you thank both counsel for your argument the case of columbia river keeper