on this case presents unique facts unique grievances and there's no case clearly on point no case has addressed the issue whether it's city which admitted lea does not have a pay interest in a property subject  forfeiture may bring a challenge to the forfeiture under the administrators procedure act and i believe that the unique set of facts here are called the perfect storm of facts explains the absence of case law normally if as the city i don't think any city has ever challenge to a medical marijuana facility seizure outside of the seizure proceeding isn't that a more likely explanation well the explanation is normally when you have a crack house or a house where there's drug dealing the city would applaud that what's different in this case view marijuana for medical purposes you have drug dealing well at a property in a city that the city didn't challenge in a forfeiture hearing simply put city does not have an interest in the property well the city doesn't want to stop the drug it it wants the revenues from sales of medical marijuana the city has several discrete injuries interests of its own but it has no interest in stopping the  activities and therein lies the conflict between what the united states is doing here in pursuing the real civil forfeiture action and what the city of oakland would like to see done which is tell the feds to go haul and there's no case law because medical marijuana is does have in the view of many including cite just employed by the united states  against federal law for us with that argument if that's but we're bound by the fact that it's a schedule one controlled substance under eight forty one a why well things are changing and let me we moved it is against thousand and fourteen budget appropriation it said in section five thirty specifically no funds appropriated by the united states congress for the justice department in the year two thousand and fifteen shall be used prevent any of the thirty two states in the thirty two states where you now legalized medical marijuana taxpayer action asking this court for injunctive relief to enforce the congressional sense that money should not be used for these enforcement perceive is that what you're asking if i'm not asking that's not that's not in with our back office or was this argument in that record before the district court when it ruled on well it was not because the legislation and appropriations just occurred a month ago no a month how is it proper for us to take judicial notice of something that did not inform the district court's decision because one of the issues one of the issues that has been raised raised in the first time on appeal by the united lexmark says well maybe don't we don't call it pretentious standing but we look to zone of interest but more importantly we look to a statute to see whether or not the city has standing and is recognized as a party that can bring this kind of an action that's right in analysis but let me just close up this point which is there is a conflict between federal state law and why doesn't settle supremacy resolve that big because in conduct by the aid an agency you can seek review if one is finally to see action which there is here and to if there's no other adequate remedy well let's go back to fix and seven zero one a let's start with first principles and that is this chapter meaning the administrative procedures act applies according to the provisions there are except to the the extent that agency action is committed by two agency discretion by law and it seems to me that you're challenging the discretionary decision by the attorney general and his united states attorney in san francisco to bring a civil in ram forfeiture action isn't that the end of the inquiry under the a b a if we conclude that that applies you lose no because discretion is bounded by judicial review and the prosecutor decision to initiate the action and what standards do we attach to make that inquiry the standard would be as set out in the ministry of procedure act which says suppose that the united states had proceeded by way of a criminal forfeiture and had added a count to an indictment charging manufacturing controlled substances conspiracy to do the same all the the of criminal violations and then in the last count of the indictment said and were seeking to forfeit to the united states the premises which are being used for the manufacture or distribution of controlled substances would you with the city's position be that you could intervene in the criminal proceeding and ask to have the criminal forfeiture account stricken from the indictment and by what authority would you bring such a claim well first i don't think that it's a it's a tough political would but it's also not the set of facts before this court but it's no different the united states here is proceeding under the civil in ram forfeiture per provisions of section eighty why are they not which i mean the government facility for conspiracy to distribute marijuana under eight forty six and they did they took a easier approach and executed in interim forfeiture of but anyway i'd like to hear you answer the judge's question as to whether or not you would be able to intervene in the criminal case the in syria perhaps but that's just not before us that is not before us and i think it will be tough for a much tougher road the whole for the city to say we want to intervene in a criminal proceeding and and fortunately that's not before us i don't know of any basis that would permit that and as i hear your argument the city's basis for trying to intervene because the government has chosen to initiate civil forfeiture action is the a p a but i don't see why seven zero one eighty two doesn't bar that action from the get go because it's no different for an agency in this case the department of justice to decide we're going to proceed to a criminal forfeiture by presenting the matter to the grand jury versus we're going to proceed to initiate a lawsuit under eighty one to accomplish the same thing the forfeiture of the promise well when you say the criminal in your hypothetical swimming work behind the counter the people who provide security in the parking lot they could all be named as a coconspirator but again it's not that's not before the court we have an easier set of facts but that the forfeiture is the same the only difference is one one is under a criminal statute and one is under a companion civil statute and the question and i don't see how the agencies discretionary decision to initiate prosecution civil or criminal is any different involving real estate has been use to further the distribution of narcotics if i could come still come back to the and it's limited to circumstances in which there is no meaningful standard in which to judge the agency's decision not to act i don't understand why the district court would have any authority to review this particular suit under the a p a you have an entirely one hundred percent appropriate remedy at law which is to simply intervene in the interim has said forfeiture proceeding and assert your rights there but that the same difficulty in the the city of oakland has discreet injuries and you just raise article three let me come back to just a minute the discreet injuries are among other things number one a cloud over this and he cit the very filing of the former traction raises the question about the legality of the underlying scheme and and in the complaint it doesn't address the city's regulatory scheme at all it's going after in the eyes of the federal government people who are distributing controlled substances in violation of federal law it in addition to that it is saying that the dispensary which is operating on open property under the oakland's regulatory scheme which is in fact implementation of the state's medical marijuana videos their own property i'm sorry this isn't city property that they're operating correct that's right yeah so what what interest do you have in vindicating their property rights they have their own interests in proper vindicating their own property rights in the interim forfeiture proceeding but you're exactly right the city is not seeking to vindicate any right in that particular real property the city is seeking to vindicate it's right in number one so we're still right there is always goal revenue from drug dealing that's what your tax revenues from medical marijuana sales to an interest in the right choice scheme and there is and you can collect that right up until the time that the federal government is successful in their forfeiture proceeding correct it is being collected and the district court did no injury in fact that you do not have to wait until the actual last moment to have injury you can have perspective injury so why wouldn't the city's claim to the revenue fall to the government's claim to the revenue if it is successful in the forfeiture action because as i understand forfeiture law the if the government succeeds then the money reverse title to the money reverts to the time of the wrong the distribution of the controlled substance so it's now the federal government's money that the city is seeking to tax and the city is not going to be able to succeed in a civil forfeiture claim because it can say that it was ignorant and it was a bona fide purchaser for value so to speak when it sought to tax those revenues because it knows that these are revenues from the sale of controlled substances so it's not innocent in terms of civil forfeiture law so where's the city harmed here it doesn't have any right to the money well two two responses number one the government has not brought a is for for to claim is not directed to the tax revenues that's not before the court second gentleman is seeking all of the revenues which are proceeds of the sales and if it succeeds in the civil forfeiture action the court  below we have we said the government has overstepped its bounds acted without authority one of those bases is it will stop all and there's a long pattern of representation is by the governments  in in writing in orally and by their pattern of non prosecution for six years that gave the city reasonable basis to believe that its program same think we're not going to prosecute when the congress passes the legislation they say the department justice will not use any of these funds for doing exactly what they're trying to do which is me proceed to forfeit making an argument to the congress to legalize the use of marijuana for medical purposes and it's entirely proper but i don't think any of those materials seek to the judgment we me about whether or not head for the united states may have please the court i'm judge tolman just to answer your question i believe that the civil forfeiture action that has been filed is just seeking to forfeit the physical real property and is not seeking to forfeit anything that oakland presently owns and i think that really underscores the limitless nature of oaklands theory because my friend stands up here and he repeats some of his underlying merits arguments about why it is that he thinks the forfeiture action is proper isn't proper but that's not the issue before the courts today the question is just whether those arguments can be raised in a collateral attack or instead whether they need to be raised in the actual forfeiture action work congress has set up a procedure for deciding whether something will be forfeited and for individuals who have a property in able to raise the defenses that they see that but the city doesn't have an interest in the real estate mr their interest is as they say and being able to regulate in a controlled and safe environment the dispensing for attack whether it be a civil forfeiture action or a criminal prosecution or regulation or anything else is actually just squarely foreclosed by applicable precedent let me just kind of break that down into two different categories first see the extent that the city claims that it is article three standing under this theory that the city is regulating something and that thing that they're regulating won't be able to operate as well as it used to operate i direct this court to the case cited in our brief the oregon vs legal services case where the state of oregon made basically the exact same argument that the city is making here the state of oregon had set up a regime for regulating legal practice it was actually trying to encourage legal organizations to merge in a particular way as a result of what actually there was finally agency action by the federal government the consequence would be that those legal organizations in oregon would want why why have you pick this fight the united states government the president the attorney general and the justice department is largely looking the other way in terms of medical marijuana facilities you certainly could have prosecuted these people along the lines of what judge holman had laid out you haven't done so and the people of california have spoken on the issue and yet you want to pick a fight on a legal issue that's now involved the ninth circuit the district court on something that you could effectively address in any number of ways and you know you chose this one i mean what's the endgame here well two answers your honor of course as the court is aware in this case it's the city of oakland that's picking a fight and the question here is just whether the city of oakland can raise the kinds of challenges that it's raising  to why it is that the u s attorney's office brought the separate civil action the one that oakland is now trying to collaterally attack to be honest i don't know exactly why it is that the u s attorney's office made the decision and i actually think it's quite striking that here in oakland collateral attack i mean my friend just said that the decision to initiate that civil action would be subject to complete a p a review and he listed the various items in five u s c seven zero six which means that in his view in even in a separate action something that ordinarily would not even be allowed in the fourth attraction courts should be at a lies in the motivation behind this decision should be looking for consistencies or inconsistency s and if i could by the way just push back on your honor's premise just a little bit some of the various testimony and memos that my friend has cited do not out of work we say that there won't be any civil or criminal actions brought with respect to the controlled substances act rather i think they just lay out what the government believes is an efficient use of federal resources it discusses how it is resources generally should be focused or shouldn't be focused and indeed i actually think the obgyn memo that my friend relies on specifically refers to resource focus on one if you want to i like it when lawyers push back the makes us think about things and it seems to asset forfeiture action against one of the major municipalities in the nation against a law like this your honor i don't know exactly what kind of deliberation occurred before that cision was made you don't think the united states attorney consulted with the justice department at all before they brought your honor that sounds entirely possible but i've just as a matter of fact very surprised if the answer to that question was no i don't definitively know the answer and by the way to the extent that i have to the extent that i sort of would have any information about that obviously kind of deliberat process that goes on leading up to a decision to initiate litigation is not the kind of thing that ordinarily you know we could make public but well you could think generally quite the practice is i think we're pretty familiar with th sure so as the court is well aware obviously the department has stated its policies on efficient use of resources and where it is that resources should be focused or shouldn't be focused but none of that is at issue in this case the question pronouncements that have been made by the department of justice is a little curious that that we are here in this case and that's why we were what's the underlying basis for these you're not i mean i'm certainly not trying to make light of that concern at all all that i am just trying to flag is the question in the plaintiff's appeal is whether the plaintiff's action is a proper want to mean there may be a separate debate as to whether these kinds of issues of consistency or d o j policy could be raised in the forfeiture action but here the sole question is whether oakland a city that has no property interests that is outside of the category of individuals who congress set out to be able to contest an ongoing forfeiture k'naan the last collaterally attack it and indeed i think it's quite odd would end up with a broader right to attack the forfeiture then the set that congress actually said has an interest because if you own the dispensary if you have a property interest in the dispensary if you have a mortgage in the dispensary under the applicable statute is the district or pointed out you have thirty days to file an objection under oaklands theory because they have less of an interest they have six years not even just to file an ordinary objection but actually to go after the u s attorney's office for its decision to have brought the action in the first place  why doesn't that then because back to the one i think it does your honor to be honest i mean i think that question of how this appeal should be resolved is almost over determined think oakland doesn't have article three standing they don't have credentials standing as your honor points out we agree also what they're targeting is committed to agency discretion and it's also governed by an exclusive scheme which creates problems under seven zero one and also seven o two and seven zero four why are you c g that this is an agency decision that can be challenged under the a p a we're not your honor one of the other arguments that we've made is that this does not constitute final agency action the term final agency action does not kind of colloquially mean some agency made up its mind but rather as a specific meaning under the a p a which is that someone's rights and obligations have been determined here filing a civil action much like filing a motion to dismiss or filing a criminal action doesn't determine anyone's rights or obligations it just invites the court to determine someone's rights or obligations and the fact that the plaintiffs are not able to essentially sue the court under the a p a does it mean that it can start stepping back in that kind of chain and go after anyone who made a decision i mean just from the very simple we're just concern about the president takes an oath to see that the laws shall be faithfully enforced and then the president and the attorney general of the deputy attorney general make public comments that well we're going to reallocate our resources and we're not really going  marijuana laws and then the united states attorney in san francisco brings the civil forfeiture action against the medical marijuana dispensary to your responses your honor the first is even to the extent that somebody may disagree with the way that the president is and forcing law or the way that another federal officer is and forc it doesn't mean that they automatically get to go into court and create a case or controversy about it they need to have standing there needs to be a waiver of sovereign immunity those are the issues that are before the court in this case to the extent that your honor does separately want to discuss the ethical policies i do just want to point out that i think government resources and made clear i mean if you look at the ogden memo that i believe the plaintiffs have actually included in their excerpts of record it makes clear this should be not not be taken as a policy that should not be taken as a commitment so it is a little bit odd then for the plaintiffs to be standing up there and saying aha we have a policy we have a commitment but none of that is at issue in this appeal well i mean it seems to me that this short answer is if the president is not happy with the decision of the united states attorney there's a very simple solution to that problem and that is ask the united states attorney for a letter of resignation you're in obviously i don't want to suggest that specific remedy but you're certainly right to the extent that department of justice attorneys are making decisions there's obviously a chain of command and if someone thinks that it decision is an improper one obviously the department of justice has a number of ways are i know at least in this record that hasn't happened not that i'm aware of and are well in an analogous contents in the immigration context for instance we get communications from the department of justice saying our resources i'm going to be mediation or deferred ruling on cases so why isn't this somewhat analogous to that circumstance where we've received a lot of representations from the government regarding how the resources the going to be immigration officials have with the court and if you accept my description of that your honor if i accepted your description of that then the analogy would seem to be if the city of oakland filed a lawsuit against the attorney general saying that someone who lives in the city of oakland might get deported and that they want to collaterally attack whatever ongoing immigration action is happening there and step through some kind of highly speculative system in which they might regulate that individual they think it will somehow harm the city of oakland you know i just i don't want to sort of to dig too far into that hypothetical but it would seem like there wouldn't be article three standing there wouldn't be pretentious standing that you would not be allowed into the a p a the issue would be committed to agency discretion all of the same points that are at issue here i know that my friend wants to kind of bring into this court a proper suit the district court offered to go back to the original question that seems to be the sense of the panel which is you know if all those things are as they are it would no doubt be more effective to him if the justice department isn't going to do anything criminally about medical marijuana facilities respecting the rights of the voters to have these sorts of regulatory schemes  places like california it would seem to me that you would want to have officials in cities like oakland regulating and overseeing the dispensation of marijuana rather than a bunch of drug dealers and if you want that you certainly don't want to start a fight with them by bringing in an asset forfeiture action that's resulted in all this right here on earth that sounds like the kind of policy argument that oakland is making here this isn't a of supreme court terminology for attempt to create standing is to create a right the invasion of which would constitute an article three injury the plaintiffs motion to take additional notice it's a little bit unclear about what else they're saying with respect to section five thirty eight if they are somehow saying that they fall into the zone of interest of section five thirty eight i should say it's actually not necessary for the court to reach the zone of interest in korea at all it can rule on any of the i think it's for a p a grounds that we've offered or article three standing or by the way the other potential standing argument we've made is a third party prevention standing argument that i think the plaintiffs haven't really even responded to in their reply brief but i think judge holman raise this question as well if they are somehow claiming that they fall into the zone of interest of five thirty eight because that wasn't the legal we set out three concrete bases for standing we think standings relatively easy barrier the issue of potential standing which is really one of interest this case authority from the supreme court saying this is an easy interest in tax revenues but the interest also in having safe streets and having healthy citizens health and welfare is clearly not it's more than a policy interest it's actually gives it standing the a p a fits just case like a glove because if you have no other adequate remedy in court which we don't the court city doesn't and if just finally can see action which there is then there's a presumption but the city is very distinct the city has distinct grievances distinct interests and distinct relief that is seeking from that of the claimants the claimants are seeking hold on i need in order don't take my real  property what is city saying we have no interest in a property just like the pacha case in the supreme court we don't have an interest in the property but we want you to do is preserve our regulatory scheme preserve our ability to protect our people preserve and allocate are scarce police resources those are very very distinct and i think unique to the current use of the property for example your revenue argument if the government succeed and title the property forfeits to the united states the property will eventually be sold at auction with the government wants to hang onto it for some reason and then another business will move in there that may generate revenue for the city so how is the city's revenue interest harmed or do they like this particular revenue because it's generating twenty million a year in in taxable things the rate in this is in the record the rate applied by ordinance to marijuana sales is five percent it's a higher rate than is true for other types of retail establishment so their argument that you can mitigate your losses by putting another tenant this does not does  come true ok i think we have your arguments in mind you are out of time i think of both sides for a case that was very well argued the case just argued is submitted for decision will decide it as quickly as we can thank you all and we sta