it may not be easy to divine from our brief but we my colleagues and i leverage heartily to try to winnow down the issues in this appeal but there are many of them and they think well proceed from a basic flaw now been granted by the supreme oh well ok let me try different approaches i doubt whether it was on this issue because it's a well established principle that where congress passes a congressional intent to preserve the power of the traditional powers of the state and that that reservation of rights is that there are we really talking about the power to enforce because it's a congressional statute that is at issue here yes and your argument as i understand it is because the state of california has been given primary enforcement responsibility that that somehow deprives the environmental protection agency and the united have jurisdiction to enforce the terms and i don't know that that's not our argument and if i misled the cory apology perhaps you can clarify this this is clearly these provisions three occurred and congress was very specific about how that reference was to take place they required that it be brought in to be referred either by the governor or by someone with clear authority by someone authorized by the principal agency includes division but the rain could have the vision but it depends on whether the person within that the vision has the authority has been expressly delegated by the chief executive officer or by the head of the agency and there is no evidence here the but let me harken back to my days when i was handling cases that occurred on indian reservations or on federal property in the middle of cities and we would have instances where the land title record as a result of congressional action created concurrent jurisdiction involved federal law enforcement agencies and city or county or state law enforcement agencies to enforce crimes that occurred for example a national forest and why isn't this situation more like that that there is concurrent jurisdiction in both e p a and whatever the relevant agency is in california to enforce the provisions of the clean water act is but that the enforcement mechanism contemplates that the state will have primary responsibility but it seems to me your argument has to be primary means exclusive unless the provisions of the referral are followed and a proper state official fully delegated to do so makes the referral back to e p a before e p a can commence a civil and or your honor in or not your argument you know i don't think so the e p a does have a story to initiate enforcement actions those procedures were followed here they don't claim to have been followed here they have emergency powers which it's interesting because they were not used to hearing at this case was treated visits some form of an emergency seven years later seven years after the fact but the procedure the think that they didn't follow  it under the federal act and the regulations doesn't want to do it itself has not followed its own procedures since it doesn't filter adequately and i'll get to that in a moment the to the public utility or to the to the water operator and offer of assistance and there's a whole set of procedures that follows that that can be done it's own initiative on and right and that given your what is it thirty or sixty days notice before we're going to come in right means he apparently didn't feel that way here and they did not invoke that right so they're waiting for her what congress required as an action of the state to tell them to follow this alternate perceive it doesn't require those and so forth we need your help but in your quarrel then under under b to as i understand it is that it says or if requested by the agency of such a state which has jurisdiction over compliance by public water systems in the state that that request was actually not made because the person who wrote the letter wasn't authorized to make the request and that's correct the agent that's correct and why why wasn't just focal correct when he said you waited too long to raise that objection it was not a jurisdictional district court under the rubric of enforcing violations of e p a regulations to make decisions about the resources available to operate public utilities to the public well it can consider those things but when it considers them if they must then fit them into a permissible remedy and judge fogel recognized acknowledged and his opinion a point in the receiver when he have intended it as being a rather well established principle of of of equity of the exercise of equity powers either any circumstances under any statutory scheme here where there  the festive sure is so well before it gets divestiture the court the six point five million dollars worth of improvements that the court ordered most of which i think the record course those involved upgrades to the public utility system are as clear as can be within the heart of the rate regulating rate regulation of forty of the california public utilities commission and one needs only to refer to the heart well the series in which we cited page forty one of our opening brief for the scope of the authority that we go hardwell is twenty seven cal for fifty six of two thousand two decision of the state supreme court in which it explored the of the scope of public utility commission regulatory statute which says the court may enter in an action brought under the subsections such judgment as protection of public health may require that's pretty broad language that's pretty broad but it's not specific enough i mean how does the judge overall error in light of that broad language and looking to the general powers of the court to first of all conduct such proceedings as the court determines are necessary to inform as to the nature and extent of the problem and then fashion such judgment as that the terminus is necessary to protect the public health by including because it lacks the expertise to do that and this court certainly has recognized in the supreme court as the principle of deference to administrative expertise and i submit that that's what congress intended to have happen army and the environmental not on the regulatory aspects that are that were left to the states by congress it did not know for example that when it went when the state p c orders six million dollars worth of improvements that the state has an obligation to ensure that that's recovered in rates which i had no concern about whatsoever i thought he made reference to the fact that he recognized that some of these changes might require  receivership order and the divestiture of the companies after finding hundreds of violations of the state's drinking water act and holding a nine day trial where he heard testimony from county health department state health department federal health department and expert witnesses from both sides including an expert on policies that the defendants put forth addressed the portion of the record which show there is nothing in the record on that topic and the reason there's nothing in that in the record is that in seven years of litigation in the district court no one has suggested that dr staff did not have delegated authority there was an issue in i don't think we need to remain on for two reasons your honor one is that i think that the first safe drinking water act if you look at the language of the statute it talks about that the request needs to come from an agency of the state which has jurisdiction over compliance by website the agency that has regulatory authority over public water systems is the drinking water program that's the subdivision of the division and drinking water environmental management in other words dr staff is the head of something called the division of drinking water an environmental management underneath him with something called the drinking water program and according to the california d a just website that is the entity that regulates public water systems that is the legal reason why this court doesn't need to  it would have been valid now question where's the linkage there is no evidence there was never an evidentiary hearing this issue was raised two years after trial for the first time and our position is it doesn't go to the subject matter jurisdiction of the court doesn't go to subject matter section it can be a mandatory pre filing requirement without going to the subject matter jurisdiction it can be waived there are cases where for instance you have to go to an administrative tribunal and that's me on the tour and we're not saying that this w and i believe that an argument can remain that the statute recognizes that where the federal government is going to intercede and just water rights in the state of california only two people can do that can request the federal government come in one mcgovern the state of california who must run and must run more often and normally recently and to the head of the agency the chief executive officer of the state which would undoubtedly be the governor of california the beast says the agency it's that state now it's interesting that we would require either the governor or under the government's under the united states position today a whole pan juxtaposition to say it's either going to be the governor or could be a whole bunch of other people who i don't think it's to be a whole bunch of other people i think it needs to be the agency of the state which has jurisdiction the question is where i mean you could have a situation where there's the secretary of the department of health and with and there is various sufficient to have said the president without getting it and agency since the president had can order agencies to do certain things in some states i don't know whether this is true in california those agencies have independent authority and members of the cabinet are elected separately  report to the governor and not controllable by the governor and so promised they would have what accounted for those kinds of situations by allowing agencies that might have independent authority to independently request such out such a matter but it wouldn't authorised anybody in the bureaucratic not only on federal question jurisdiction but also on thirteen thirty five twenty years two thirteen forty five and thirteen fifty five were played in the complaint united states as the plaintiffs and in any action brought by the united states for a penalty and regardless of how i'd like if your honor you're satisfied as such as it is with that to move on to the question about the propriety of the sale sale order which i think is the important issue is probably the most important issue and the question of the role of the public became in charge of the systems and it is absolutely a misstatement of the facts that the judge had before it to say that the conditions improved the judge found that there were very serious conditions that were going on at that time including a boil water order that went on for ten months including people who had to use bottled water for years including failure of the lead and copper rule going forward to nine hundred ninety eight including all the violations of the m c l that were educated in two thousand and two thousand and one and as the court and including the time of trial violations continued unabated and so the court was acted well within its discretion to decide that the situation had not improved do you agree with the you have to use the least drastic or less drastic remedies before you get more drastic remedies but the evidence before the court was that there was no money in the systems the unrebutted evidence at trial patricia adhoc testified that in bank to loan money there is not was definitely always anticipated that this was a temporary thing secondly there was no managerial competence within the organization to run needs that the testimony in which the eleven pages of factual findings was that the systems  any other systems within their jurisdiction they simply did not have and it is not their job to hand hold public water systems and the court found that the financial situation in the managerial incompetence where the real things that  the point that you start as a statutory maximum which in this case was over ten million seventeen million dollars and then you look at the statutory factors and you go down and down and then the court did a detailed analysis of the factors that are set forth in the safe thinking want to and in similar statute defendants that could have supported a higher penalty but he made factual findings starting at the stats right max came down and then said well i understood and i took into account your complaint that the person who makes the systems were sold for less than the t defendant still own and so it's very unclear to us why that argues for one thing or the other if they spent money on the small systems they did it at their own risk the court did not order them to spend any money on the small systems because he knew that they were getting ready to be sold and he did not  only repairs that were or west of the stillness that the court was to maintain last point i'd like to make is that the court looked at other alternatives that it could have had in front of it and it said i looked at the fact that the county issued orders and look at the injunction would be a waste of time and detriment to the public health and we have to remember that people were drinking bottled water at the time of this the time the judge made the decision and moreover the defendants are saying well you know perhaps the judge should have had another hearing in two thousand and four and whatever's in the record in the receiver's report shows you that there's still very very serious problems going on at these systems even at the time that the judge finally issued the sale order in two thousand and four i see that my have you know give you a little more than thirty nights ok thank you well it's hard to know where to begin the first of all i don't think the record supports some of council statements in terms of unabated violations to the contrary most of these violations took place before ninety five there were a few after two thousand and two thousand and one they were committed by the at cost of course and that's why they were committed by the end cuts and the at pacha the ones who have born the brunt of this the six million dollars was required by the or was recommended by these black and feets report the court ordered those and those to be implemented and i think it's less critical of the court's errors  most of them i agree with counsel they had nothing to do with the violations that occurred in this in this case what what what reason is there for that also there was a two year disconnect between the trial and the time that the best picture was finally implemented and the record was very different the court premised its views on the absence of financial capability to make those improvements they had made them by then it knowledged tommy had abilities and he proved those for the most part the errors of the government pointed out that they've been placed in context would have been seen by the public utilities commission or anyone familiar with in this area for the kinds of problems that occurred in some of the buyers who were publicly report the court was not interested in that it was convinced that this family that operated this utility was doing so in some horrible fashion and we do therefore we did you're stuck with some pretty tough finding over that's not in there and that was since ninety five pretty strong language i read through those orders well ok and i i guess i'd have to i would have to be convinced that a federal court is empowered to in effect apply the language of the statute talks about taking into account the seriousness of the violation in imposing civil penalties up to twenty five thousand dollars for each day of violation and he found hundreds of pilots i'm not i'm not  division which has had some recurring problems it's a bigger system one would expect that and regulatory officials find that all the time and make judgments about whether the improvements should be made and how much should be spent and how much should should be