council made maybe i misunderstood the record but i thought there were two to specific findings that you were the court to make regarding the potential of human remains one where the government says no there was just a piece of p v c pipe and the other one was apparently south of the border in mexico and d h s obviously couldn't go over to investigate chairwoman a councilwoman in the tribes in house or ya'll just an outside archaeologist all offered evidence based on their own traditional knowledge of the oral history of the tribe and also i read your character based on evidence from other archaeological sites in the area that there is i likely burials in the project area well high likelihood but the question is have they actually discovered any isn't that the issue otherwise we're that that's i think that was a concern the judge patel yeah i mean you can say there's a possibility because there are no known sites that have been found but i guess the question i'm asking you is is that enough to overturn the district court's concern that you just didn't have enough evidence that there actually were and several village sites or burial sites inside the construction zone it may have been  side i think if the government had served the government surveyed the area from its surveys didn't find any evidence of burial sites whatsoever it would have said that inspector ration but it said something different it said there were no known burial sites and we wouldn't we knew that already based on the records review that our own archaeologist did and that's in the record that there were no prior survey secure so there wouldn't have been any known or recorded burial sites found your record search the this is a tada logical argument but how do you prove the negative if they haven't found anything to date then why should we assume that they will find something in the future well your honor i'm not i'm saying it's sort of a tunnel logical problem here and you really are asking the government to prove the negative when you can't prove the positive ok let me let me go move to the next my next point here  suggests but i don't think that's the rational for irreparable harm that's a standard under any p s a but we're talking about irreparable harm here in the tribe as stated in its declaration that all of the cultural resources in the project the government has conceded there are resources in the project area and i think that's enough under this court's presidency demonstrated our enemies if you don't you think there's a big difference between action activities that are occurring in the national forest and activities that are occurring along the international border which we know from our own docket produces many many cases of illegal alien and contraband smuggling no contraband being smuggled across these open areas of the border you're wasting valuable time here i've had in numerable cases that did not have anything to do with designated border crossings as have my but i i just i don't understand your point here at i mean if you're saying it's not go ahead i'm sorry i'm sorry i'm sorry i didn't mean to i thought you were rebuffed i guess can you point me i guess t references that the likelihood of injury is a st mitigated by the efforts of the defendants with regard to these protocols consultation and cultural monitors and then a fact that it should be noted that much of the activity will occur on federal land which has already been disturbed with very well construction isn't that a finding by the district court yes and i  like he was talking about the survey by the government and it does appear that the government survey was a very thorough and the government did find some archaeological resources but didn't explain with those work evidence before the court overwhelmingly was that the government is making really extraordinary efforts to make sure that none of the harm that led posture is worried about actually  the factual dispute about where it was or what happened but for purposes of making sure that harm is avoided the key thing is that in each case the tribal members who were present were allowed to go ahead and deal with the the trial will be contacted and it will be given time to deal appropriately with whatever it's found that there are tribal cultural monitors on site you can go wherever they want and observe whatever they want so i think what the district given the nature of the homes that were alleged in that court and the government's evidence really taking extraordinary steps to work with the tribe as much as possible and to avoid can we talk a little bit about the likelihood of success on the on the merits it seems like the district court here recognized that the seer a close one injunction  and that was not a grounds for granting relief like it was also looking to the two orders that this court has issued the other thing is that the sierra club stay is a complicated animal because it st came to this court on a supreme court order where the court said quote among the reasons is that the government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the acting secretary's compliance with section eight thousand and five and quote yes we are and that's certainly what the supreme court said as the district court said explaining it when the supreme court does tell us what it's doing it's important to look at it i think i think my response was well or to do it then the idea that the district court treated that as some kind of controlling press about which i don't think is true because the courts just looking at the likelihood of success i mean frankly you're on at this point none of us in the district court was right none of us knows you know whether that claim claim is going to be sustained are not the supreme court think you don't necessarily have to agree with what the district court did and one of the things that you know that we see throughout this court cases as this court you know for example in the twenty eight hour a case what what the majority said about the decision in california it wasn't an abuse of discretion for the district court to deny this day it's not that we would have done it the same but the stand of their purview is one that the stay there was an injunction and place but this is where i want to look at the california part of the most recent twenty eight to eight opinion where this court has over and again said california from our own circuit no i understand that your honor but it's but that was that was also the supreme court's they are the ones and i think if you look at it from the district court's perspective it has to read the tealeaves and i thing and it's really hard to say that that's a legal error on the part of the district court because it may not be following the merits decision but it certainly is doing exactly what this court did in another case and we did bring that willing to the district court's attention at the here so as i understand your your argument you're saying because the district court has to make a predictive judgment about the significance of the state orders that is a permissible factor in legitimate to that's i think it's an area where district courts really do have significant discretion as long as they don't you know commit legal are or you know i have one has to make a predictive judgment as to what the ultimate likelihood of success will be on the merits and then balance that against the showing of irreparable harm in deciding whether or not to grant in that's true that's true with regard to settled law but but again i'm back to my question about predictive judgments here that the question is what is the likelihood of ultimate success on the merits and it seems to me that that is a factor that the court can and should consider is it not in trying to to make that prediction i think it is your honor but i think alice is it's about likelihood is that predicting likelihood of success under and it also didn't have it already weighed existing lost in the project but you're but you're not challenging the authority itself to in essence suspend the various statutes including the environmental statutes that burial sites were bound by the area and i just want to it's emphasize again that that statement is nowhere in the government's evidence and i want to highlight something in particular on page twenty three of the record it's reported size and with field surveys purpose is not to find recorded states reporting sites are in the archaeological records database the point of the survey is to find unreported sites and the  i'm not so sure they would do that in the case of the wall and they have been shredded in the record there is that there's an account where they tried found what it would identified as a public what mexican archaeologists identified as the or if he's on the wall project i think is almost impossible here in all cases i thought the district court said that you were offered the opportunity to supply your own tribal monitors but the tribe declined if you wanted more thought it was an expense issue because these these folks are not cheap we're paying them seventy five dollars an hour for their services well let's remember this is a three billion dollars project the government also said that they could our dogs would be  that's something that you know that is a little bit uncomfortable for the child considering the expense of the project so you know it doesn't mean as an obligation particularly where well the tribes position is the government has to pay for everything right