regulation of any department or any agency of the commonwealth of pennsylvania so well the suit made it because of the case or controversy requirement involved one building the scudder falls ministration building and certain aspects of the department of labor new industries regulation of the building what it really is about is the commission attempting to prevent the commonwealth of pennsylvania from exercising any sovereign regulatory authority over the commission under how would it not how does and it's a prospective why is this not squarely with an expert a young i think this court rejected that exact argument a few months ago in the water for a commission decision the court said you can't just look at the fact that the defendant is of state official in the pla the nd one the court's focus wasn't so much on the specific performance the courts it even were equitable relief like specific performance is the only relief sought it still is barred by the th the member if the real substantial party in interest entered some sort of relief consistent with the scenario you presented seems like the district court in a relief consistent with the notion that this is just a fight over who have control any aspect of the commission's operations it that's what it said in its complaint to me that made it clear the complaint again was related to discover falls ministration building but the commission what it seeks in the in the the reasoning on which it relies would apply to any attempt by the entity being created by local states obviously in this case we're talking about pennsylvania new jersey has only that authority that it's expressly given in is creating document in its contract i mean other hand you sovereign states to create a multi state entity like the one here only relinquish that sovereign authority that the expressly an unmistakeable relinquish in the contract to combat that issue here and we're focusing as your honor has just simply on the regulation of building safety that it come back that issue here says nothing about granting the commission the authority to regulate the safety of its own buildings the construction of the buildings the elevators the boilers and so forth and it nothing about giving relinquishing the commonwealth sovereign authority that his have for one hundred years to regulate the safety of those buildings just as it is done for the past eighty plus years it has regulated the safety of the commission's buildings without a people elevator certificates what have you but there is very broad general language you know almost reminded me of the necessary improper clause in the constitution i mean it really gives the commission disagree for a number of reasons article two p again on which the district court in the commission of relied so heavily you have to st start with the beginning of article two which applies to all of the parts of article two including two b w to the th case which we mention to your honor and also the international union operating engineers doesn't our case last then for the proposition that unless the states if there is that multi state or a pilot or compact unless local streets but here there is no reservation by the state and is in our case law pretty clear that we can skip this st this express relinquishment by virtue of having a compact that's the relinquishment and so if the state wants to with regards that maybe they were good examples but these two cases that we have states stand for the proposition that if the contract is silent regarding the state's ability to exercise this then it is something that the commission has the power to and the states do not have you know lateral power is not a direct i don't think it is i think you have to look at the context of those cases in which that language is used those cases both involve claims by private parties not sovereign states that created the multi state entity but private parties seeking to impose new obligations not seeking to continue the same regulatory authority that it exercised for eighty years seeking to impose new obligations on the fundamental operations of those multi state entities and i think all of those things distinguish those cases from this one so that that language may have a part in those cases where you had private party seeking to close impose those obligations under the fundamental authority and back this court in the cases that your honor has asked about in the operating engineers case in his case actually repeated that language to challenge and i think in a case like this words the sovereign state the state of which the commission itself is it instrumentality that while the sovereign state is seeking to continue exercising the same sovereign authority that the commission agree for eighty plus years it was an idol to exercise and it's in it's looking to do that not with regard to the bridges so whether it was it a bridge issue or well it's an administration issue that affects the bridge but maybe it's not as closely related we really we really have to do that i don't know where in the case let's say we do that i think and if you look at tell it it's as you don't  this court in many cases including the case that your honor states i don't think that was necessarily linked to the water rights issue in terror and i think that it's linked to the issue of a state contract a multi state entity like the commission that was created here by pennsylvania new jersey once it's created it doesn't have  state has it simply does not and the supreme court's case law makes that clear and i don't think that operating engineers or they have a say otherwise i think what they see is that the private party cannot come in and impose new obligations on the co answer during his time but we actually enduring discovery sought to discover the background to how this changed and the commission objected to that discovery we moved to compel it to produce discovery regarding the background story to why it changed after he for years and without a peep without an objection accepting and integrating for eighty four years the record is unequivocal that for those eighty four years in the creation of the commission the thirty's to two last two years and the as i say the commission objected to that in the court to not order them to to produce that discovery so i don't know what the answer is again i the record is clear though the commission claims that you know it's ludicrous claimed after the fact that for those eighty four years it was just agreeing to allow the commonwealth to regulate the safety of the building voluntarily there is zero evidence in the record that that's legal argument but in terms of and again this was not decided on the pleadings this cases that were ringback knows it was decided on us motions for summary judgment in the record summary judgment record is clear that for eighty four years the commission did not object at all there's lots of contemporaneous f records that the commonwealth put into summary judgment record that evidence that both sides read for decades that the commonwealth had the authority to regulate the safety of the commission's buildings just like it regulates the safety of other buildings throughout pennsylvania mister murthy let me just draw your attention of the language of the contract because we treat this like a contract correct you to look at the language of the compact right yes so you said that the purpose of the compact was to operate bridges across the delaware river but that's only part of it there's quite a bit more right article which lays out the purpose it had the other powers that be but in terms of the purpose it's everything relates to bridges it relates to purchasing constructing maintaining operating leverage and if there's something else i'm missing i you know yep well i don't see anything or an article to the other words there are other words besides operation and the words i'm looking at are administration maintenance and then a and then it goes on to talk about new additional bridge facilities so as i read that the natural reading i think and is that this contact is to administer operate and maintain the current bridges and perhaps to construct additional bridges again all right all right but then we got a piece when i was referring to a sort of the parallel the necessary improper clause p says to exercise all other powers not inconsistent with the constitutions of the two states or of the united states which may be reasonably necessary or incidental to the east section wish and of its authorized purposes or to the exercise of any of the powers granted the commission well if the commission has the power to administer the bridges then why isn't this cover faults building right in the heartland of that purpose to administer the bridges and why then can't under p the commission exercise all of the powers related to what's necessary to to build that building and rent that building and operate t throughout pennsylvania have the right to construct new facilities to operate new facilities to maintain facilities what's necessary for them to do that is not to regulate the city of their own construction in elevators and bo building is reasonably necessary for operating the bridges we were not disputing that but the building is very different than saying that it's reasonably necessary for the commission to hav regulatory you know obligations from the commonwealth the commonwealth as i said regulates the safety of construction elevators and boilers and fuel tanks and buildings throughout the commonwealth and there is no reason why it's that connection it needs it doesn't need to regulate its own citizens safety of its buildings in order to maintain or operate the bridges but why would the safety be another matter and under an location system character and all other matters in connection with any and all improvements or facilities which it may be authorized to construct a stablish effectuate meet safety is a matter that exists in connection with improvements and facilities why isn't it specifically building for for something other purpose it's an administration building right and again i can't emphasize enough that we're not saying that that they have it that they can't or they need or even are provable in order to construct their ministration building but it goes a step much further than the language of either to enter to peace to say that it's necessary in order to have an administration building to administer the bridges to operate the bridges to create construct the bridges that be allowed to disarm  kill people there's there's just i don't see any way to read into article two men were too picky and i'll go back to the specific language of two and the church rendon asked about it it's not clear the facilities in improvements even refers to the buildings throughout the compact almost all the referent one exception to facilities improvements are referring to the bridges not to and it makes sense because a commission that is that purpose involves bridges in many aspects and bridges should be given the to do anything it wants with administration building within the borders pennsylvania and that's just a again that's a step that it's impossible that the legislators in the th thirties in pennsylvania new jersey thought they were given this commission that they were  good afternoon your honor so i wanted to get right into the merits with regard to hip and operating engineers i i think those cases tell us some very important points and terms of how to analyze these contacts you look to the expressed terms of the compact to determine what was retained by the sovereign in this case in new jersey and pennsylvania  this court previously has rejected the same arguments that are being made by the commonwealth in this case which is because it's silent on whether or not both states can use their own construction coaster safety codes this court has held that once the states enter into a buy state and city like this to commission both the state of new jersey and both the commonwealth of pennsylvania relinquish their sovereign authority unless is it express least they did in the compact this compact is not ambiguous like the district court found this compact does not indicate anywhere excuse me either as is or are there any limitations to for example if the commission need it to have a roadway or in between its properties it would have to it can it can it can purchase land it would have to get an agreement with the local municipality in terms of acquiring the land and complying with the local municipalities rules and regulations that's that's one example the power of  levy is another example so the so the so that both of the states when they entered into this compact know exactly what they wanted to retain and what power they wanted to give to the commission they knew how to do that they knew how to exclude power from the commission but they also knew how to express lead retained powers so we don't look at it from the point of what what's not in the come compact we look at what's what's in the contract what's not in the compact so for example how about something that's really such a police power like like safety or or how about zoning could they could a building anywhere in a in a residential development and not comply with the zoning laws of your honor they would have to comply with the local zoning laws but they have the power to acquire the land and contract the land they have the power to comply with the zoning laws yet they have it they have to comply with who was there which for th for safety purposes and in terms of the police powers that are still with the local municipalities so they wanted to build a building in let's say upper make feel township they would still have to talk to the local municipality that was not retained that specific was not retained that was retained by the state that was not given to the commission i don't see it in that compact that they retained authority over a zoning or safety i mean i think here what you're saying is a little bit it doesn't work i don't think you have to comply was only do they have your theory well they do not under our theory no but but there's a section in the end the compact that requires for i was talking about land acquiring land they have to work with  don't believe it would be part of that compact because it's not for the making it's an operation of the bridges for people traveling to or from new jersey in pennsylvania which is the reason for the creation of the entity because both states decided to create the sense of state so it did not have to worry about what was happening on one side of the river versus the other side the river so this so the states made this entity for that purpose and that purpose would include allowing the commission to build and to maintain and operate all apartments has buildings and structures that are necessary to their to is is you know what wow ford is your administrative latitude extent because it wouldn't be totally beyond the realm to imagine that new jersey and pennsylvania commission i'm sorry might decide that the low end in scott are false is very very expensive in the way and on the other some of the jersey side is very very expensive so you might want to put it ministration buildings in in the sticks where were your acquisition costs in your building cost might be a watch eappen would you be allowed to do that yes and do it not subject to the regulation of the safety you know police power of the municipality i would say the compact allows the commission to purchase land so long as it's within their powers and their operation of what their purpose was so for example the turnpike commission i think example has a building in harrisburg their main building but they also have other other buildings so yes your honor i think the power vested in the commission who to acquire land is not geographical at all it's within the state of pennsylvania or the state of new jersey and as long as it's within their purview when it within their power and within their mission then the and unless it was reserved by the commonwealth of pennsylvania or the state in a jersey you can't be a unilateral action then yes  neither state can and can employ their codes their safety regulations and specs and guidelines so yes your honor i would i would say yes to that question i would i would say that judge directly us they question regarding the past conduct i would say that the district courts did the right in their houses st the district court looks at the terms and conditions of the compact st to determine whether or not the present any ambiguous terms there is no ambiguous terms in this compact compact related to the the state's ability not to come in and use their safety codes and not to come in and inspect so you don't need to look at past conduct to create an ambiguity because there is no ambiguity so it's the commonwealth is doing the reverse argument they're doing exactly what was rejected and hit and what was exactly  rejected by judge hardiman and head and what was rejected by judge judge rendell and engineering operate in operations and so i would say the past times up is not relevant at all actually to the whether or not they compact is ambiguous and whether or not the state of new jersey or the commonwealth of pennsylvania expressly retain the right to do so what's your view on the sovereign immunity issue this is a clear case of ex parte young so i'll step back a little bit your honor when one summary judgment was found in this case the th remember it was always at issue or it should have been an issue in the commonwealth's mind there's nothing in the record that would support any finding that there was any and i heard a concession that this would solve anything regarding to the fest or or fact offense but what this is is a classic ex parte tell you all circumstances where we have a prospective relief where we have no money at issue where we have a federal law d meeting the compact once it was ratified and enforcing a federal law so our position is that the th of them immunity does not apply in this case and on on its own facts and as that court already pointed out that was a much different circumstance because that would have affected the entire state of new jersey because they were trying to force new jersey i believe to stay in a compact and they wanted out so that affected the issue wasn't addressed by the district court was it even raised in the district or it was not raised in the district court i would have said to your honor that could be considered waiver but of course it's jurisdiction it's eleven to many i could say that it's a waiver but the course of conduct below would indicate some to all of us that the commonwealth never even considered it in the st instance and ex parte young has been around for a very long time  that was that's our position actually on the th amendment community and one of the other things i wanted to touch on is the idea that we when we're building these structures and maintaining the structures it all goes to the safety of the folks who work there workers people who visit so it was provided to us the commission was giving us the commission was given the authority to inspect its own property to make sure it thank you are just very briefly two or three points just the one point on the th amendment immunity it was raised in the commonwealth sansar as a defense th amendment immunity was waived and as i believe i heard mister scott a authority is remarkably broad in a preclude preclude the commonwealth from exercising essentially any sovereign authority sovereign regulatory authority over the commission let's let's assume that we disagree with you on severn immunity and we also see those hips and operating engineers as being significant obstacles from your argument here is there anything that you would suggest that we could do to the court the district courts declaratory judgment its final judgment which also relates to the scudder falls ministration building only relates to the department of labor and industry i don't recall exactly the words of the bit it relates to certain aspects even not even i think it was narrow declaratory judgment it's still in our view would be a troubling result that would be essentially finding despite the silence on this issue in the compact that the commonwealth did not retain its sovereign authority to ensure the public's health and safety through regulating this the safety of a building within it or at the bridges but a building within the borders and sylvania so we would still find that to be a very troubling result that we don't believe is is required by the decisions in hip or not bring it in years but at least it will be limited to the very limited scope the narrow d scope of the district court's declaratory judge