jurisdiction to protect the waters of the landscape of its ancestral home the birthplace of its people the menominee river in today's argument i would like to make three points st the tribes claim is a timely as applied challenge to the poor and the e p a s refusal to accept jurisdiction over the weapon permit for the back forty mine on the menominee river nd the national historic preservation act requires the federal agencies to consult with them the nominee tribe concerning historic and cultural resources because this permit meets the definition of an undertaking under the f and rd e p a is decision to withdraw it objections to the proposed section four for weapons permit is reviewable under the administrative procedure act so turning to my st point this case is an as applied challenge to the and provides evidence in the record the menominee river is used or susceptible to use in interstate commerce and as such this permit cannot be delegated into the clean water act two a state can ask a question about the just just to sort out legally for a nd sure what you refer to and i understand why isn't as applied challenge your in your brief one of the the primary authority that you rely upon for a challenge like this to proceed up the kind of a project specific challenge if you will in the face of what is an otherwise broad standing of permitting authority is the d c circuit one thousand nine hundred and seven decision vs the fair labor relations authority and i've read it and it's not clear to me how that case supports the kind of as applied you know legal cited in the briefs concerning as applied challenges including cases from this court really address the general concept of as applied in other words obviously that case was not about a for th term it it is instead what that case recognizes just the fact that you can have facial challenges to an agency rulemaking or action such as here the delegation to the state of michigan but often those claims are not ripe  or can be challenged later when they're actually applied to the detriment of one of the parties and in fact that's even with the cases that the district court relied on in this case to dismiss the claim say that you can come in later and you can bring in as applied challenge when the agency actually applies that regulation or that thing to one of the litigants and then that then affects the rights and the consequences to that litigant and that's really what we're talking about here is there was a delegation to the state of michigan the one thousand nine hundred and eighty four memorandum of agreement is in the record and that delegation was asked to certain waters now at that point in time there wasn't a permit there wasn't anything that was happening on the river near this location but in fact now the agency is applying that the tribe in two thousand and seventy said hey there's this mining permit there's this big mine we have historic resources there we have burial mounds we have historic garden beds and dwelling sites that's going to affect us and we looked at this and it looks to us like the menominee river in that section is used in interstate commerce and so this permit really should be administered by the corps of engineers that is a classic as applied challenge on understand that but what you have to do don't you is you have to identify a source of legal authority that com the agency to affectively revoke the nineteen i don't mean wholesale but effectively revoke the one thousand nine hundred and four delegation for purposes of considering how it applies to this particular project so my question is what's the source of that legal authority thank you your honor yes that is thirty three u s c section one thousand three hundred and forty four g that is the provision of the clean water act that specifically says that a permit in program wonderful for the well in permitting program can be delegated to a state but it reserves back any waters that are used or are susceptible to use in their natural condition to use in interstate commerce and it's specifically says in that provision of the act that those waters cannot be delegated and in fact the corps recognizes that in the memorandum of agreement itself it reserved but in your view does that does that provision require the corps or the agency on a project by project basis to determine whether that jurisdictional threshold you know has been or maybe that's not the right great word whether the pre condition of the in or the use of the waterway for interstate commerce has been triggered your honor i think that because i think that we'll see what they have to say but my sense is they will say well sure that that was absolutely considered in one thousand nine hundred and four but when when projects kind of come up you know seriatim as they do we don't have to revisit it every time well your honor i think that what we've got here though is a classic as a play challenge where that was raised in other words we aren't talking here about whether the core each and every time the state of michigan issues a permit whether it's for a water that may be subject to interstate commerce or clearly is not the court i'm not arguing has an obligation to look at that each and every time i don't think that issues forth for here but the issue that is before the court if you do is you have the tribe specifically saying to the core hey look at this there's evidence in fact you had this at the time but now when it is being applied per the tribe specific requests for the court to take jurisdiction the korean e p a have clearly taken a final action and said no we we delegated it that's going to be good for all time we're not taking this permit back and i think that gives rise to the as applied challenge here where the tribe should have a it's a day in court for the court to review this and determine whether or not that river this permit on that river should of the delegated permanent well your honor i think that that's an excellent question and we will pursue that in the michigan courts we are representing the menominee tribe in the court in the state process because in order to protect their interests we really are required to i would note to the court and we do cite this or provide this in our briefs that the administrative law judge which is the level at which we start right now has plainly stated that he in the state of michigan will not look to federal law he does not want to hear this argument he does not want to take up the argument that that may be a problem and i understand the ale jay may not think that he has authority as a state a l j to reconsider the delegation of his own jurisdiction but the i would think the michigan courts could you've got to support the supremacy clause on your side if you're correct on the merits yes and and but frankly what i'm worried about here  is there a forum a fair forum for the tribe to raise this issue but nd is there a way to manage this process so that we don't multiply parallel channels of judicial review and infinite in this process where you challenge the p a you challenge the core you challenge the the state permit in michigan and that's just i think variety of reasons so st and foremost that it's plain under the clean water act that it really should be the corps of engineers and if we get all the way into the process of actually challenging a state permit and going down that road the tribe has actually lost ground because it should be with the corp why is that particularly important that affects the rights and interests of the tribes with respect to application of other federal laws that the tribe normally having a government to government relationship but permit and says you got to the mine company has to start back all over again with the corps and the e p a and i appreciate that your honor that may in fact be the route but i think that that doesn't negate the fact that the federal law applies and says that where you have it finally agency action here by a federal agency which we have and that final agency action affects the rights and interests of the tribe which it does and there's an federal underpinning in the clean water act for in the states when they're the two states i guess where we have these four or four b delegations that that process is going to become completely unwieldy because anybody can challenge in both litigate permits through the state processes and then bring these parallel challenges in federal court challenge we're challenging the original delegations right yes your honor and and i appreciate the court's concerns that that sometimes makes some of these cases more complicated and in fact that the tribe would prefer obviously that it not be that complicated which is why the tribe raised this well before michigan issued this permit it doesn't just make it more complicated it it's an open door to parallel litigation in every coming proceeding your honor i would argue that it is not parallel litigation every permitting proceeding because in fact this is a pretty strange situation where you would have a water body like this that is not delegated so for example there are probably any number of water bodies within the state of michigan that would not be subject to use in interstate commerce and so there may be permits there where  this wouldn't come up at all this is a very discrete issue in this case and i think that the clean water act recognizes that sometimes you are going to have federal and state corresponding issues that arise because that's kind of the co operative federalism situation that we have of the clean water act i i believe that yes there may be instances where you may have litigation in both bodies i don't think that is for close by the statute and i think that those situations would be limited and i would invite and ask the court to consider the special circumstances here in waiting whether or not it is important to give the tribe a federal form because you do have a tribe that issue here its own sovereign government that has government to government relations with the federal government not with the state of michigan and in fact the state of michigan has made very clear that it has no relationship with them in a many indian tribe of wisconsin and yet we're talking about clear historic resources that are subject to protections we have a river that again the tribe just wants its day in court to talk about whether this permit on this river should be delegated and i think that the federal law would soundly support this court finding that it is appropriate under these circumstances for the tribe to be in federal court and to have its rights protected in this as applied challenged i would like to move to my nd point if i may and that concerns the application of the national historic preservation act here and the tribe argues that the consultation obligations that arise under the act apply here  regardless of who is the primary permitting authority section one hundred and six of the national historic preservation accept forth the obligation of federal agencies that have a forty two license to consult  on historic resources with the tried and in one thousand nine hundred and two congress amended the national historic prove the preservation act to provide additional protections for tribes and as part of that process congress further detailed and defined what is an undertaking that is subject to consultation under the act and in doing so congress specifically called out actions that have been delegated to a state that is part of the definition of an undertaking let's assume it's an undertaking how do you how does it qualify under the federal funding federal licensing pramod that well your honor our of i think that's the i think that's the real focus i think that our opponents you're on are actually  too limited in their definition they're under one of the six you can read just language of section one of six concerning when the consultation obligation of risers it arises as as you point out your honor for federally funded projects or federally assisted projects it also rises for agencies that have the authority to license in reading and arguing that the statute says that it is only when the agency itself is doing the licensing that's what the court found and the below and that is what our opponents argue that is too narrowly reading the statute section one of six and that refers to the a forty two license and then when you read that as you should with the reading the statute as a whole with the definition of undertaking that includes specifically and i will quote projects that are subject to local or state regulation ministered pursuant to delegation or approval by a federal agency that clearly squarely applies here and to therefore read the statute as requiring that the federal agency itself issue the license is to narrow it into reading part of the statute entirely out of the existence which is not something we do under canon statutory construction and it reads section one of six too limiting with my remaining time let me just briefly address the case law on that point if i may because of course what's been a lot of discussion about those d c circuit cases the two cases the so there's not really anything to grab onto with all are insured in color rameau we do not have a permit much less a state delegate is permit and stead we have the court really in dicta and a passing reference referring to this federally funded or federally licensed project it did not grapple with this very specific issues that are in front of you here so this court has an opportunity to really examine and analyze the whole of those  bottle thank you thank you federal agencies responsibilities are much more limited and that's consistent with congressional intent here the tribe requests and urges the court to require the agencies to me take a more robust role but that's simply not that it raises an as applied challenge but it misses the st step which is that to have a proper as applied challenge there must st be a final agency and the letter and challenges on appeal the core letter in response to it's the tribes or quest for consultation and jurisdictional determination satisfies neither element of the two part bennett tast applicable to finally can see that it's not a decision making process on th consummated in the latter indeed the core had no authority to engage in such a process it was legal so how do you think the tribe should obtain an authoritative resolution of the question do that now they could do that now i'm unsure whether it would affect the scope of the permit process here become a challenge this you know the michigan state courts i would be pleased to submit supplemental briefing on that my initial answer is that that's a question that the that the agencies i'm sure would like to to take a role and discussing i'm sure you would but it also seems to me in this this cooperative federalism that's being talked about is a recipe the federal courts it could certainly take a while and some of the same is how does this work in that in the ordinary course just stepping back a bit when you when the agency see changed circumstances so you look at a waterway an eighty four there's no interstate traffic on it you fast forward to two thousand and seventeen and there's meaningful interstate commerce you know along a river how does it work does the agency say oh we had to revisit the part delegation you delegation right there i don't i don't know if they can i don't think we have to answer that either but what they're saying is that the circumstances it clearly changed and you're dealing here with a non delicate waterway right as if we measure it today and it's just a different way of asking i think the question that george hamilton has so you know how does that get injected you know into the into the current controversy simply says this is within the scope of the regulation setting forth the state's permitting authority again and that my best answer is simply that if the tribe is concerned about the scope of michigan  is the primary permit in authority in the st instance michigan's permitting authority is it set forth in the regulation that's right what would the five hundred and fifty three petition say in your view the petition could say we're concerned about the scope of the state's permitting authority here is information we request that the agency reconsider the regulation or the scope of the regulation of regulation the eighty four dollars delegation no it would be to thirty three purposes the fact is that there was no petition there was a letter and the agencies responded or responded and said we don't have authority to take back michigan's permitting authority at this point at that time the cor had no authority to issue permits because e p a had not even objected to this to the state permit at that time so if we were in a different situation yes i would say that the scope of the permitting authority should be reviewed in the scope of the petition but the the tribe has not argued that they submitted a petition it doesn't bear the hallmarks of a petition certainly we do not require particular words or magical words to make it a petition but some indication that the tribe seeks a change in the regulations setting forth the state's permitting authority would be proper you know what's odd to me about that are i'm anxious to hear what most grammar thinks about it but the tribes august st two thousand and seventeen letter that resulted in the e p a s in the course letters in response that's not construed as such a petition because they're talking i mean you know the letter they're talking about two things right the duty of trust to the tribe when they're talking about change circumstances than the one dollar to a waterway why would an agency construe that is exactly what what you're describing is possible here he didn't see as construed the letter as a request section for a for a permit the tribe also requested or explain that it was concerned specifically about the permit that's not the type of request it would make if it were submitting a petition a petition has to do with the broader regulation issue here they've made there it would have to cure the right the reason they care is because of the acuity application that's correct but they have made clear that they are concerned specifically about the keel a permit the explain throughout the litigation that this is an as applied challenge specific to that permit that's not the sort of relief that they would receive if they submitted a petition and ultimately the agency needs to be on notice that somebody is petitioning for a change to the rule and here the agency responded because it has a responsibility to engage with its interested constituents and i as i've explained e t a offered consultation what what if if there was a five hundred and fifty three petition in that was successful what relief could they obtain they could have the agencies reconsider whether the waters assumed into michigan's permitting authority  proper with properly within the states so that would be a kind of a reconsideration of the threshold question under the eighty four delegation that's correct and what effect with that have on the mind permit it would be it would mean that  the mine permit would need to be submitted to the corps for review under section four a for it would simply mean that the permitting process would proceed before the federal agency but ultimately here the agency's position is that they received a letter and they responded and courts have made clear particularly in the d c circuit that the fact that an agency has responded to a letter does not amount to a final agency action where the letter hasn't reopened or changed the scope of any regulatory application if i could i would turn briefly to the n h p a argument the plain text of section one of the six makes clear that and  because we hope that if there is significant federal involvement and h p a consultation could affect the decision to me agency makes going forward but here that simple that federal involvement simply isn't present  also add that our interpretation of section one of six and the degree of federal involvement required here is consistent with sub par four of the definition of undertaking the d d c decision and indiana co council provides a way to provide meaning to that subpart fair there was a fifty percent funding from the federal government and the agency at issue the federal agency had quite a robust role to ensure that the federal or the state permitting process proceeded as it should there were mandatory investigations and the agency was required to come to inspect upon reclast those elements simply aren't present here where the is it your position that b p a could withdraw its objections for any reason whatsoever that is our position it's a decision committed to agency discretion so that needs to ground its objections and i'm concerned that the guidelines aren't matter of the party thirty three regulations or the clean water act but nothing provides a guidance in either for or for or the regulations for when e p a needs to that clean water act context in needs a degree to the discretion to decide how and to what degree to be involved in that process so suppose another senior government official got interested in this mine project and s saying it's really important that this mine go forward in the e p a needs to get out of the way the e p a then withdraws its objections so that you mean from judicial review i would hope that there would be some i'm sorry withdraw its objections it simply confirm that they've been satisfied nothing in section four of four or the part two thousand or two hundred and thirty three regulations provide any information about when e p a should be satisfied that it's objections  have been adequately met if the tried believes that the permit the state has issued is not consistent with the applicable law it's able to raise those substantive concerns in the state proceeding with the court explained in american paper that there is no sense in having dual judicial review both in federal court and in state court ultimately the focuses the state permit and the and the tribe can seek review of that permanent state the court but there are two issues with the tribes position in this regard the st as missing the stated is that we even with an as applied challenge there needs to be a final agency action to latch on and here are the letters that were sent by the corps and  not qualify as finally agency actions they simply do not have they do not consummate the decision making process and do not have the legal consequences that are wired under the two testin bennett but even setting that aside there's another issue with the tribes position and that is all the courts to have examined the issue of an as applied challenge in the context of the administrative procedures act i have held that there are two very narrow circumstances were an adequate challenge can be raised the st is when the court ago and we're going we're pursuing and akila can pursue the permit under the state permitting program as it does as a designed to work the nd the nd exception is when as we've discussed here before the party petitions an agency for an amendment or rescission tool and then that that decision is then appealed to a th and that is an avenue for the tribe to pursue here they could petition either be timely now yes or no on if they could do that now they could petition river what's wrong with that i'm sorry could you rephrase that if the nineteen eighty four delegation was wrong as a matter of law and fact to treat the most of the menominee river is subject to delegation what remedy is available again your honor that is where the tribe could petition the agency but you're saying it's too late for them to do that with respect and anything that would affect your permanent they brought timely challenges to your permits why can't they raise that issue in the state courts they they may be able to your honor i believe that that is an open question but even if the so you're going to you're go fight them on that right and yet your honor again i believe you don't want to you don't want to have to relive a gate in one thousand nine hundred and eighty four delegation but they're entitled to litigate it somewhere i would think absolutely so where do you think they should do that they should raise a petition with the agency in a way that's too late to affect your purpose as your honor and the tribe has been it been involved in this process since at least two thousand and they knew that this was going to be coming akila met with him back in two thousand and ten and told them we're going to be seeking these types of permits including a weapons permit the tribe could have raised it then if they were concerned about it but instead they waited seven more years and didn't raise this until after i had already gone through two and a half years of this permanent process just untimely as a as a legal matter just because it would in your view would be terribly unfair in other words what what source of law would make it on timely five hundred and fifty three petition this afternoon your honor i don't believe that a fifty three petition would have retroactive effect on a key permanent i believe that's why it would be on time even if the perm even if the permitting is not completely resolved because there's outstanding litigation in a state court right now yes your honor i believe that it would be something that would not have retroactive fact because the keel has already gone through that permanent process original delegation was and was contrary to federal law presumably they could set aside the permits right if the c or alternately had authority to do that yes i think they could but the difficulty there are state courts supposed to enforce federal law see courts can enforce federal law your honor the supremacy clause seems relevant here yes your honor it does but the difficulty would be the effect of that would be that a state court would essentially be telling the corps that they would be that they would have to take permit any authority over this constitutional scheme certainly honor and if that is an avenue that the tribe wishes to pursue we you know we can let it get litigate that in the state court as well but ultimately that wouldn't have an effect on their claim here which is not a proper as applied challenge issue which would reinforce the fact that this is the tribes only forum to raise the early signs of your honor i believe that was attached to our briefing to the court and they just signed that yes you are confronted is attached to them and on the indian tribes opening brief to the court you but i would direct the court's attention to page three and i will provide that in the letter so that the court is reminded of our citation that does seem to suggest that the state courts are not going to review this issue i would also like to address in the singles comments concerning the submission of the petition in fact both of opposing counsel raise that sure that's an avenue we don't need to undo the whole delegation we don't need to on do anything other than what is applicable here at this point in time and in fact as the court has stated that's still going to put the tribe in the untenable position of this project going forward potentially and in fact let's just talk about what we did here the tribe submitted a letter that asked for the very things that are at issue here and letters and that letter clearly asked for more than consultation if you review that letter it says this river is not properly delegated here is the evidence and in fact that evidence came from the corps own files that the tribe had received in response to a freedom of information request so that ask was plainly before the agencies the agencies letters back are plainly final agency action under all applicable federal law they consummated the process in that they said no we're not taking these termit back we're not had an effect on the try that had legal consequences it changed the interests of the tribe and i take issue with ms crysler his argument that somehow there's only final agency action when it would affect the permitted party that is not the law with respect to the ability to challenge an agency action under the administrative procedure act in that event then the tribe would be left with nothing because the tribe is of course not the permitted party here and would not be the permitted party that is not the law and we would reject that argument as proper to see that my time is up and unless the court has questions thank you thank you thanks to all counsel the cases taken