from the island mountains and by allowing the destruction of the island mountains through complete sinai they just closed the tries from using those mountains for cultural purposes this was  standards would we apply that fact assuming we agree with your premise that there is a fiduciary obligation that surrounds the treaty how do we determine whether that obligation has been breached without looking through federal laws environmental laws and how do we get past sovereign immunity it seems to me that you want the advantage of sovereign immunity under section seven zero two but you do not want to be constrained to the final agency action requirements of federal law in pursuing your breach of the didgeridoo claim have i just some that is correct occurred but we have to we have to look to something to establish that duty in order to determine whether that that you see your obligation has been breached that that is correct and that the place you look for that duty is the are the treaties that's what other thing and the promise to forgive the term but to protect the tribe from the depredations and i'll stop there what else do i look at in the treaty that helps me to determine what the duty they're defined by equitable principles governing trust relationships and so you look first to the treaties to find if there wasn't fact a duty and then in the implementation of that you looked at general  understand that argument if we were talking about a more traditional kind of a fiduciary obligation in connection with a trust a financial obligation for example to handle the assets of the trust in such a manner that they're not wasted and that they are invested for the protection of the beneficiaries the problem i'm having in connection with an environmental case is that's what the environmental statutes are written for and there are very clear procedures that that the government and all interested parties have to fall and why wouldn't we look through those statutes to determine whether or not a breach hasn't act occur well we're not arguing that those statutes are relevant but we're we are arguing they're not the end of the story for example when it comes to water rights and the tribes have a right to water coming out of the island mountains on the reservation that was protected under the grinnell agreement the diminishment of water coming leeching from occurring well i would do is and i wouldn't use the word regulate your your honor because it's not and i'm sure that you'll hear that from the government side but this is and when you're talking about a farm and my neighbor on the adjoining property starts dynamiting a law says and my minx go crazy and they kill one another and i think there is a common law breach  to protect the rights of adjoining property owners shere we have a different situation and it seems to me your claim is the failure of the government to prop really regulate the activities of the miners is what has of the quality of the water and so we have to look at those statutes in order to determine what duties were owed to the and how they were breach specific protection in other words not only eliminated the environmental laws but also said that the government head affirmatively that the government had no obligation then my answer to that is no the tribes will have their claims and with respect to the interference with the water coming on to the reservation that's very close to the bottom of the road but i would suggest in terms of what the government's to obligation is because if we don't have a common law we don't have a common law doctrine that really defines how the relationship between a government and somebody that is supposed to be regulating you have a common law claim the common law claim generally governs two different parties each of which owns property or conducting common law i agree with almost everything you said except for the last part it doesn't have to do with how the government is supposed to regulate third parties it does have to do with what steps the government should take in order to carry out the promises that are made to the tribes and i would just as respectfully suggest that there is a fair common lot of trustees don't apply only to financial arrangements they also attached to the management of property and if you are managing your property in such a way that allows a third party on that property to damage somebody else's property you're going to be trucks so i really don't think it's controversial that the cliche obligation extends to property not just money or that the obligation extends to offer information activities that treaty helps you i'm looking at the language that binds the united states and i quote to protect said indians against deprivations and other unlawful acts which white men residing in or passing through their country may commit and quote why shouldn't i read that to mean acts that are only taking place on the reservation  there are a couple of reasons the main one being that every rule of statutory or treaty construction that applies to agreements between the federal government of the tribes so that you are intent that you are to construe those in the most generous way possible favor of the tribes not a big us i gree with you the plain language talks about activities occurring on the reservation what you want me to do is to construe it in such a broad way that it affects the activities of white men residing in or passing anywhere on or near the reservation but the two additional responses one is that it's time of that agreement the grinnell lands were in fact part of the reservation but secondly th to look at it within the context of the treaty at the time and one rule of statutory or pretty construction that's true but the core of indian law is that you interpret them as the indians would have interpreted them at the time that's a area that affects the water going on the reservation the tribes use of the mountains would be considered by the tribes at the time i depredation ok so now how do we get past the sovereign immunity problem because if you want to bring a claim that all for correct although i think that this case would meet the requirements of several or if it came to that but we weren't really presented with the opportunity to make that argument to judge malloy well because you had not challenge the record of the decision in two thousand and two that you were barred by the statute of limitation because you hadn't brought it within six years of the one nine hundred ninety one or whatever that it was yes he did find that but he didn't address another provision of the definition of agency action which includes the failure to act and there's an ongoing failure to act to address ongoing pollution coming on the reservation at this time and that is something frankly that we were question for the moment or a common law claim that failure to act discussion in the sewer and somehow bar that claim from being prosecuted on his objection was that at the level of generality that the challenge was being prosecuted in two of the plaintiffs were sensually asking the court stand in the shoes of the executive branch and that was not permissible the affirmative what damning or building of the filtration plant on the river well i will give you a couple of examples but i want to emphasize that we haven't gotten to the remedies phase and that should have been but was not briefed to the court one specific remedy however that we would ask that courts do that is to enjoin the government from allowing the continued diversion of water that they just put tribes water on the reservation that's ongoing right now on such a classic negative equitable remedy th court could give us or any private water owner in a common law case  your honor i think that that was also a an issue that came up earlier and judge what i believe is on the right track to wonder whether that kind of claim can survive after so what as i understand one twenty four supreme court it twenty three seventy nine that that passage out of the discussion from sue on here i think it's very difficult to say that a general statute like slipping or a general standard like unnecessary or undue degradation  it doesn't specify a discreet act that the government is required to take it if it is at fault within the realm of generality that is generally generally left to the expert expert interpretations of the i'd like to touch briefly on the two other issues that are presented by this case  the first issue at least the first issue that was presented by the tribes in your opening for youth has to do whether that has to do with whether the district court acted within its discretion in granting summary judgment in favor of the united states at the close of the liability case  liability of the united states and do not go to remedial issues quote unquote that would necessitate factual development and briefing and remedy phase of the proceedings i think i would submit that the tribes argument to the contrary and the court also ruled that any challenge to be alarms approval of expansions of the mines was moved in light of the back to the bankruptcy of the mine operator and the closure of the mines now that i don't believe that any of court to affirm the judgment of the district court thank you very much finally agency action for which there is no other adequate remedy in a court are subject to do review this exception the section seventy four takes cases in which they are here's an adequate remedy in a court out of the provisions of the as the d c circuit found in the national restaurant association but that's that is a bit i think you're begging the question by by taking that position because i come back to the question i asked you at the very beginning of the argument which is what we look to in order to to determine what the duties were and an easy way to answer my question which doesn't help your position as we look to this specific environmental statutes that address the activities that is going landowner and the need for a final agency action and carrying out those statutory obligations which have complied with should meet the obligations that you heard that the united states owes the tribes under its treaty obligations well part of my answer i'll repeat which was that you look through the specific treaty language and those treaties have some meaning in there with the tribes or not with the general public so to say that the obligation can be satisfied by doing what the government does for every other citizen in the country doesn't really it takes away by who are downstream will be benefited by the government complying with the statutory obligations well there's no question but what the statutory requirements serve a salutary purpose and but i think my point that they benefit everybody the tribes not specifically is valid whether you're looking at the time of the treaties or today these treaty obligations are ongoing thirty be interpreted as the tribes interpreted them not as joe citizen interpreted them at the time that the trees damages in indian tucker act cases and there the supreme court said you have to find a specific statutory basis for your claim that you have a treaty right to recover took pains to distinguish general trust principles that apply to thrives when they're not making monetary claims under the indian tuckered act and the sequence of cases and i certainly call it needed in the bronco bad case took a d c circuit case involving involving non indian tucker x claims that applied to this you got to find basically a private cause of action under a statute in parent with the