rule in your favor you're telling us that your view we could do that without the presence of the united states as a party but were we to rule against you and in effect uphold the district court then your position and they have an opportunity to do that in this court and they did not do so instead they they said we part did not come up with any showing that either the department of transportation or  regulation right off the bat a bare assertion not showing that doesn't that doesn't show the star betraying completions we did come up and show from the regulatory record that in fact the access board had considered these things in detail but  if you're going to attack a regulation is arbitrary capricious you have to attack it in light of the regulatory record you cannot say that a decision about the evidence is unreasonable unless you know what the evidence was and the plaintiffs had an opportunity to bring that evidence signage regulations similar to that of the d o j race but the plaintiffs and their experts all said that the signage was not a viable solution for those plaintiffs in other words their expert said directional signage and that's what the word spade one seventeen committee's recommendations the one seventeen committee of the international code council i get confused but i hope i've got it right we're going to follow the a one seventeen community one seventeen committee can study the issue for seven works this is not an arbitrary and capricious decision well we don't know what we're going to do and we're not going to do anything about it at all it is an incremental approach that says we're going to try these things but we're not sure the question here is efficacy  to this point except that i have seen some references in there that say that there's a there's a question whether or not putting them on every on every sphere makes the staircase look flat rather than top and bottom and  there are there are disputes over what they are i think the record itself demonstrates exactly the kind of sticky technical issues you get into when you talk about contrast writing because you have the the plane claiming that the nineteenth street station in bart which has because it was revamping our reconstruction i guess is the word i wanted was required to follow the california building codes and they put contrasts driving on all the stairs there well the plaintiff's argument throughout until the summary judgment against them was that contrast striping which complies with the california building code is insufficient because it gives us too much glare it's one of those  technical issues that the access board and not the courts is both delegated and competent to answer they have they have tried to find this sort of stuff in their experiment and i noticed in my research catching up with this the at this point they're expressing to experiment with in various places with talking signs but there are all sorts of quote problems with parking signs if they're on the f m band there's ference from the  from radio signals in the city if they're in other other bands somebody has to have a special receiver which may be expensive these are all kinds of of tradeoffs that have to be made to determine what the way finding meet needs would be the safe harbor of the department of transportation regulations means nothing because they say in their brief and again i'm paraphrasing because i'm not good at remembering exact quotes they say in their brief you know day and the department of transportation cannot get into this paper every every possible need of just disable population and therefore the court needs to go outside the regulations to find  what will be most effective for a particular population of the disabled all that means that the safe harbor means nothing as long as the plaintiff in a can come in and say i would prefer a better type of of regulation or a different regulation or do i excuse me i'm using the wrong word accommodation i think a little more nuanced than that and that would be if the regulations are very very appreciative then that in those are arbitrary and capricious we would have known no the particular regulations were at risk and we might have decided not to not to litigate this case we might have said well who knows what's going to happen down the line but if this is what they want the striping on the stairs we'll do that but instead we fight this this fight over our compliance with the regulations for two and a half years and at the end of it the judge says all those regulations that you complied with in every way  remount for the department of transportation because we again are talking about who comes forward with evidence of arbitrariness increases if you don't bring the regulatory record before the court you can't make that claim  itself even expressed delegation of power to the department of transportation to develop regulations regarding public facilities that provide public transportation a federal agen to operate within the the specific regulations that d o t developed or any other agency and then say once they complied with those that they're subject to liability i mean on the other hand they do have an obligation to comply with the federal law our concern here is that the department of transportation has never had an opportunity to defend these regulations regulations are entitled to a presumption of regularity we didn't even have notice that were going to be challenge to cause i agree with with the proposition that the district court was wrong in saying this regulation was arbitrary and capricious as to physically disabled people but at the same time concluded bart for thirteen plus years has taken no action to provide ready access to visually disabled people in  the reality is and i know that bureaucracy work slowly but the reality is this is not a simple issue of the department of transportation or even the access board having done absolutely nothing there are a lot of technological architectural considerations that come into play when you're dealing with like a subway system that it's a vast expanse often has very few sometimes as many entrances to the doors are there's not a single area where you could put it if it turns out the regulations do not match the law then is there anything for or i think that a plaintiff could certainly challenge the regulations i mean that would be that would be entirely feasible as long as they brought the federal government into the action and gave us an opportunity to develop a factual record and i thought macallan but one of the cases you cited was on point in that regard but you can't simply  nine in that case if we were there if we'd been given an opportunity and then despite all that district judge determined that the regulations were invalid or arbitrary and capricious then i mean i think that there could the the regulations can't trump a statute so this is where our position here is probably not identical to bars but but the reality is is that the entities have an obligation to carry to to enforce the statute itself and not way the regulations on the other hand we that is the department of transportation have an obligation to adopt regulations as expressly delegated by congress those regulations are entitled to a presumption of reasonableness and so there is a very high standard for a plaintiff to have to overcome an and there is there is an issue of a basic fairness allow to a public transportation entity who is complying in good faith with the department of transportation's regulations so ma regulation is entitled to a consumption of regularity so if that if there is an absence of proof that the in anything in the record to establish arbitrary and capricious no spend there is no reason at that point for the government have to be a party if on the other hand there is going to be a challenge and we're going to actually try to flesh out the record in that regard then the united states has to have an opportunity to defend itself that i mean i don't with respect i don't think this court would be able to agree with the district court given the because there's there's been no nothing in the record the united states has never been given an opportunity at most what i would the opportunity to create a record in the district court in and identify why we think it is reasonable and with that i should probably give the rest of my time to co counsel thank you very much disabilities to allow them to enter the public forum in particular transportation facilities are especially important for persons with visual impairment because unlike a person in a wheelchair or a person who is deaf they rely on public transportation since they're not allowed to drive now i think one of the difficulties in this case has been that when plaintive sued bart we did not say you failed to comply with one sign it's regular and in the department of transportation we said you have  inaccessible wheelchair route that's not the issue that's properly before this court because we have actually indicated and briefed the issue of whether or not the program services and activities are being provided now i do want to indicate that it is possible for us to hartmut justice here in the sense that if the court there would be a necessary party if the court were going to find that overturned the district court's decision but i think that the court in every district court for the district court to have made a finding that the regulation was a refrain capricious the original question of the safe harbor which is what's arbitrary  even if people are walking off the stairs cannot find the entrances cannot locate the platforms of the train stations we are de facto extensible and you have no ability to get us to do anything now i'm sure you agree with the hard for the provision of services the provision of the service is different than barrier removal for a facility therefore and this is the way that i think it is possible for us to harmonize these cases which is always the goal to harmonize the statute and the d o t regulations because i think that the argument has been so skewed to one stein in a route that everyone agrees is not usable by visually impaired persons the real question where is the crowd going we know the crowd when they enter of a bart station is going to go either to the ticketing agency and into the park or they're not going to wait for a wheelchair user to try to follow a wheelchair user around set out what one would do to provide adequate information that are not just the pension and no and there's a very good reason why there are no regulations they're not going to come up with regulations for that because programatic access  o t codes particularly say apart from these regulations everyone has to comply with the general discrimination issues and one of those is you communicate the location of accessible to sillies that's an actual mandate under the regulations that's the department of justice regulation department of transportation has a regulation that you tell people who will disabilities be adequate information concerning transportation correct one of the things that you can do when you when you deal with visually impaired persons you have to give them cues that they can understand they cannot understand science they can't see it but they can many people including our appellant deposition that those stairs were bare cost a lot of glare and they had a lot of complaints about that where we're not indicating that all of our contract striking is the wrong word indicating that you have to see the yellow communication so i did appeal all of those that is in the record but i also want to say one thing about her contract striking that is extremely important in this issue for defendants defendants have said that nobody knows if it's really effective and the have sort of the little the issue of that as a part of that statute the department of transportation was specifically empowered to develop regulations to implement that  to get the statute straight even if i agreed with everything you said about what they need to do or that they should do something they didn't do enough let's just say in principle a grid with you would still need to figure out whether usable by individuals why aren't we bound by that because that is not the only if you read that if you beat it let me read that again and tell you how i think it actually read for purposes of this part this transportation services the analysis done by the department of transportation says this applies to the general discrimination from d o j need to virtually every public facility  the seven point nine and it could come up and say we have no life believe it we've done everything we need to do but what they're saying instead it is we have complied with the constitution facility regulations for the excess of all round therefore if people are falling all over the place they get lost what we'll do is we'll tell them they have to all use this one so you know it's part of the facility in terms of whether it's accessible are not under a and so it's not like you know it's not like do we have for sure is do we have audiotapes do we have other things to tell you what we have i mean it's it's kind of hard for me to exactly distinguish where you draw the line i think that you draw the line in different ways for different groups for for different disabilities for example a deaf person will never have a you know that there's a train that there's a car that there's a whatever theory you're saying that you need the facility to have you cue jews that are part of the facility not just different than saying  you whether what you're asking for is is really part and parcel of the facility or if it would come under the information regulations well i think the comment above but it certainly is part of the information because you need it thirty five point one sixty ties back to accessible facility which you find it is best not necessarily true at all if you look at any it says i'm interested persons including persons of visually impaired vision and hearing because they are distinct from facilities person i did want to emphasize my agreement with judge hug in the question what does what do you do with a statute that specifically delegates rulemaking the forty two an agency you read the statute in the agency regulations this issue will programatic versus facilities regulation becomes a little bit difficult to do to parse out but in fact the district court i think made a very good analysis of this if we are talking about i can't comment on because this nowhere listed in their brief but i can't comment on the five point one six five which has to do with the signage and that is the part that the judge the judge wilkins found t but the access board has been doing in conjunction with the eighty one seventeen committee in the international code council they are slow they have in fact come up in two thousand and four with or not with with a recommendation which i would suppose soon given with the recommendations