it please the court peter kaufman temperature in general for the state of california i'd like to reserve a ten minutes of my time for the bottle the fundamental issue in this case is when and by what process  in trust and the united states is not necessarily a party but we you know that was a possible outcome but we felt that the better outcome in the case was to complete discovery for the possibility of compulsory across complaint which we believe would be compulsory against united states so what we were seeking with our rule fifty six motion was the opportunity to complete discovery to develop sufficient fa earlier request for it to state the time for the summary judgment motions and the court found that to say that we should have initiated discovery earlier and our response was that my response to that is that it is not relevant with respect to the this recourse ruling on the rule fifty six d motion court did not find did not did not deny the motion on the basis that we had not been diligent in either initiating or completing discovery that was a motion that the comment that the court made was with respect to completely different motion the rule fifty sixty motion was with a separate motion and the court just bypassed the question of discovery or any issues related to discovery because the court found that it was irrelevant whether the status of the other land in the status of the trial were irrelevant for always try to find a way to deal with that to deal with that problem what changed is after all those are efforts when the carcieri decision came down we complaint at that point or at earlier we were still seeking to do make sure our facts are not to go o  pension rules were elected was perfectly aware of it the court found that that he was perfectly aware of the ruling and said he was barred from attacking that  that decision but thirty years later he was allowed to challenge the subsequent determination not to award him this full passion on the basis of that rule and then was allowed to attack  later that was in response that number was a way he i b i a challenge brought by a neighborhood association and which the state of california attempted to intervene too late and so was allowed to there that that acquisition impeded the state's ability to regulate the impacts of gambling casino so not only is it knowledge of the impacts on the state but its impacts with respect to gaining with regulations by the california coastal commission the state regional water quality control board the apartment of fish and game the state department said if so it identified so specific ages so it's your concerns there are because they can't be how parent was sent to the mediator the mediator approved our compact and then this case was stayed we are one final step away section twenty seven ten the seven piece once the mediator is approved the compact is to send it to the secretary of the interior and that's extraction provides that the secretary of the interior shall prescribe in consultation with the indian tribe procedures which are consistent with the proposed compact selected by the mediator provisions of a group and the relevant and once that happened then the taxation the regulatory issues all that those things were were delineated so that they were now in sovereign us in control and not in the s well that's where i think if this state has anything that's where they have  regardless of whether it can be used this way as a collateral attack etc which we don't think it can be the negotiations that are set forth in the record here  october exchange of letters it's very clear the state of california never negotiated with the spaces and on this basis during the campaign negotiations this arose only after the fact in fact her c r it was decided four months after this lawsuit was filed that a compact negotiations were closed so the district judge quite rightly rejected that argument and quite rightly rejected the state's argument and said integrally you look at how the parties negotiated that's what good faith is this was never a part of negotiations it is a post hoc rationalization not not in the review of contract negotiations i can affirm on that basis alone the other one is that there are two parcels here i think the panel majority absolutely got it wrong if the court looks after the two in fact the site that big lagoon proposes is the reservation and humble county that includes both the nine and the eleven it is absolutely undisputed on this record that we have a right to game on the nine so it was it was bad faith card yes yes i think there is a doubt it's not in the record never thought it was a materialization but but there are there would be an issue one of the reasons carsey area look at only one of the three prongs of the definition of indian indian is not a defined term garage in fact one way the court the government you take the land into trust is for indians who are more than half blood and if the state never been tempted to challenge that problem here if it's an affirmative defense rivets because the whole purpose of that exception is to give an opportunity for a party that had no knowledge and no reason to have knowledge that was being injured by the agency action nonetheless seek rel a here the state not only had reason to know that the land acquisition was going forward and it could be used for gaming for that matter the state had also been informed that the tribe had purchased property and was seeking to get it into trust so the state knew full well even before the decision was made that there was this trust acquisition underway yet they never made any objection to the injury or problem whatsoever there was actually a february one thousand nine hundred four publication in the local newspaper the record time standard saying this land will be taken into trust but if you have any objections speak up in the next thirty days no one objected including the state so the knowledge was there furthermore joining the six year period a lawsuit just like this one was brought and i don't know how that could not largely taken care of this and when i explain how first the compact that the media has chosen because after all this is the baseball arbitration where the state was pushing very hard on environmental issues the compact they chose which is one the tri propose has actually extensive environmental protections in it it requires environmental impact report the creation of measures to mitigate environmental damage public comment on those mitigation measures and even negotiation process for working with the state in the future to protect the environment further furthermore all of the standards of federal environmental law that apply in indian country clean air clean water act dangerous species that so and so forth would apply to this tribe no less and finally the next step is to send this compact that the mediator has chosen with plenty of environmental protections built into it to the secretary final consideration lastly i would like to address this notion that the tried may very well have not been under federal jurisdiction in one nine hundred thirty four at pages four ninety five and five hundred of the excerpts of record there is an indication that the ancestors of the current members were on an official interior role of california indians furthermore at page two sixty five there is a statement that charlie's family not only occupied the country when the government bought it nine hundred eighteen but continued to occupy the yes it's true marriage survived right muscle blood but direct dissent from member to member to member is not a requirement for understanding a tribe to be the same try the ira itself