quarter where we move to condemn the property interest issue in this case construct a project the project is one that we believe is authorized under a combination of the natural gas act our blanket certificate take us through how you think that flow is if you will those issues one disputed the question i think that the district court dealt with and the issue before this court is whether the project is something that fits with it's within the scope of the federal regulations there are we've explained three tiers of authority to condemn property under the federal regulations implementing base myself and implementing bases without further off there is a sion of the commission period for other categories of activities which need to pencil require more scrutiny an opportunity for public participation in subject a notice of procedures that are so is eminent domain you're exercising the power of the government to take other people's land is that the sort of thing that is fits within something that should be considered potentially requiring more scrutiny and opportunity for public participation well that this is been dealt with both by congress and fark and the right of eminent domain for certificate holder is embodied in seven one seven h and the specific regulations as a blanket certificate issued right this is the automatic authors that's right it provides automatic automatic authorization for a list of specific activities and those are done a fight in him just record that interpretation that you gave that was  was going to be swallowing the rule twenty five five right in the district court they have the impression that if if if two away this read the way you say yes then twenty five five is meaningless because as soon as you walk in and say hey it's just routine who cares where we go and good to go that's a misunderstanding of the interplay between the two of those two five five applies very specifically to replacements there in the absent a waiver it has to be under the cap and the additional obligation is part getting under two five five you're rebuilding in the existing right away with the same facility so you don't have to follow the environmental permitting one five seven is much more narrow one five seven  that purpose that's immediately preceding for now an eleven will have a gun that just if we read that the way you're suggesting then that what is the meaning of the words presumably jason this to say throwaway language it's not and we know what it means i think what it meant originally presumably we constructed adjacent to in that case that this astor site but that life of the lividity principle is trust us we don't have an interest in going someplace and no it's not and that language is not limiting that language doesn't say we interpret the language we interpret t and they were looking for an opportunity to deal with terrorists that's in the language terrorists actually remove restriction and remove or structures to make to give broader rights under one five seven and what they did under one five seven is they added the emergency  if it if they were seeking to broaden it and they included the language presumably adjacent doesn't that imply that in fact without that broad authority the presumably adjacent language would be even stronger would be necessarily jason or something like that i think that's one way to read it but i don't think that's the correct reading i think the correct reading is the way that first has explained that no they've done it recently and that of seventy eight and what they  referencing our defenses that nearly all of those cases were involved interpretations by an agency that came in the meekest place that actually came in a case late in the process and the court gave deference and circumstance to the agency's interpretation what does that mean if it doesn't mean we've told you before under one fifty seven you're within or to jason what does it mean if it doesn't mean i think what's important is the language here doesn't say we previously  say is using the language lack of the word interpret when you know it differs no i think there's what they say is indicated previously that is contemplated that replacement facilities construct under blankets and it would usually doesn't say required or must be or have to be and you get back to the economy and you can whine why would you not like the concept is that if you have an explosion on an eleven event and that's what they were dealing with with that comment they wanted to allow an opportunity for the gas company to construct well i'm  puzzled why why would the if there is no difference because your position is there is no difference here no sunday reflects no change in position with so ever if there is no change in position why for go out of its way to say while in the past we in this case they may have read the district court opinions case i wasn't party to any of that but the difficult opinion came out i don't know what the timing is on this now but i'd also point out there so if you think later right it came out a week later but a coincidence well i'm not sure that that i don't end that agencies don't get to turn on a dime and have deference given to their work yes i don't disagree with that but i think what we're sort of i'm out of time but the but the answer your question on this issue we have language i think is clear in the distinguishing one five seven two five five that you can move the facility under one five seven and then we have the we have the two thousand and thirteen final notes we have three pieces of interpretive information the court has relied on th this is a case about whether a gas company can take a blanket certificate dig up a pipeline and put it anywhere else in the country under the guise of calling it a replacement not a relocation isn't this case which old they need to put in a new pipe for safety reasons isn't that a replacement it could be were not for the rest of the regulations the fact is the word replacement has to be read in all of the rest of it all right we have a look at the definition of eligible facility yes within that definition it says further eligible facility includes mainline replacements that do not qualify under two five five because they result in incident increase in capacity or because they don't satisfy the location requirement so doesn't that mean that if something is a replacement of a mainline it is an eligible facility and following through the regulations it can there is no location restriction is there that would perhaps be a reason one for protection work not the other things that are listed there you have the miscellaneous rearrangement provision that specifically talks about and it says relocations need to be on the same property they have some certain restrictions if they were the replacement allows you to complete least get the relocation provision and exempt yourself from those restrictions then the word replacement would is that the regulation is ambiguous to the right and if it were not created the other one visually it's the ambiguity what creates the ambiguity is the common understanding of the word replacement that it would be on the same property in the in my house and i know it's failing and i need to replace it now it happens that because i have constructed some other things they can't put the new height and exactly the same places new technological whatever so they need to put it somewhere else but still it's my plumbing and i've replaced the plumbing haven't i you're all you have but you've also relocated it i take my law office and i think that it's a replacement the district court here used a quarter of a dictionary definition to say in the same location but isn't the common sense meaning of replacement mean something's old needs to be replaced and something new is put in and that is a replacement you know i think the common sense definition of replacement assumes it's in in on or about the same location but it can't be because under the definition of eligible facility the mainline replacement because it doesn't satisfy the location requirements that says right away it doesn't have to be in the same right of way well that's exactly where they age and season for patients of those nine hundred ninety nine amendments that you're talking about that gave that exemption on replacement nebraska as long a gas as they could do below before the district court or whether it's a quarter mile away the agency didn't own a quarter mile or a mile your honor there is a little bit of a dispute to this it's our belief that what's your contention ist what is or isn't adjacent here your honor i think the district court or the i think firk made a reasonable interpretation of this in two thousand and three when they were take talking in the wake of nine eleven they were looking at could we rearrange a pipeline to get around the world trade center could we still deal with this emergency situation and they said no we cannot under the current definition under the current provision for replacements they said ever  became final regulation well the exemption did the emergency exemption that you now have the rearrangement provision that allows you in cases of emergencies to rearrange without having to deal with a property restrictions whatsoever that it was given in connection with the need for creating an exception in the case of emergencies there is no need for the emergency exception whatsoever if you can just tear it down and replace it anywhere you want but we're not talking about emergency here and we're not talking about a notice of rulemaking we're talking about existing regulations but we are talking about looking at the regulation and looking at all of the regulations and seeing if they can make sense together i still have a problem with exactly where you find the ambiguity in the in the actual regulations i think the ambiguity is how the regulations play with one another you have the word replacement you also have the word relocation and the word relocation attaches restrictions to it and the  is not an extension no your honor i think it's a construction of but i think it's a construction that goes outside the certificate and i think it's a construction that fits more aptly in the word relocation that has property that your honor i think the footnote seventy eight is in direct contradiction of the position i'm advocating today i think it is exactly what the eight what the columbia gas is advocating for i think this court should give it little deference and i think the district  aptly did that and did not abuse its discretion and did not violate any clear area of law under the reconsideration standard in doing so i think the footnote seventy eight as it recognizes in itself is inconsistent with the agency's prior representation are you saying any time i mean this has to happen all the time that fifty year old pite has failed need to put new pipe down and there's a shopping center there's a housing develop there's all kinds of things that prohibit you from doing it in the straight line that it was and every time that occurs you're saying ah we need to it's a replacement but we need to move it a little bit so we need to go back to  you're what you're saying and if you go back to her where does this reduces go your honor i think the agency's two thousand and three interpretation makes perfect sense and deals with the scenario you're talking it doesn't emergency well the agency's interpretation of back to for and say mother may i every time something goes a little bit out of the way it depends on a little bit your honor if you are going to go through say isn't that the reason why the you are ready to relocate is given when it's a relocation of a main line that you can do that the relocation placements hughson place your honor we're falling into the same trap that we're dealing with with columbia columbia guest called this relocation below and they said yeah but we don't have to deal with the relocation provision then columbia gas just stop using the word relocation now they're saying no it's not a relocation it doesn't fit that definition it's a replacement it is a relocation under the common definition of it it's a real police solicit your honor i think that they have to be read together i think if you are you cannot use the replacement provision to get rid of the relocation restrictions otherwise the relocation restrictions make no sense why have a same property restriction or relocation if you can always get around this the relocation risk it's under the miscellaneous re rearrangement we know paid two point seven miscellaneous rearrangements shipping holders authorized to make miscellaneous rearrangements construct replace or operate any eligible existing facilities any facility makes does not result in any change of service were relocation of existing facilities i don't know that that's exactly happened to respond to on the same thing it implication it's on the question of the briefing is it's a it's a significant burden if people have to go back for a new certificate if you have a response to that and what's the i think the say oh you know you you you can't do this you have to go through this housing development or you have to go through the shopping centers perhaps that's why you have federal oversight and that's why you have the public's ability to comment just like putting a new pipeline through our through our clients property for columbia gas has to go through the same procedure that you know i understand they got a certificate forty years ago but that's are typically it does not allow relocation it allows routine operations routine maintenance and this is a few cities are include replacements mainlines right replacements of main lines abandoning them but this is a replacement that qualifies as a relocation and they called it a relocation up until their opening brief before this court the reality is it falls under the common definition of relocation and the relocation restrictions are the same for those restrictions would be different in this be different what are the restrictions in the bible it would have to be either on the same property or caused by one of these other conditions and they would have to demonstrate that it falls under one of the conditions for relocation they haven't done that and they  conceded since since oral argument before the district court that they don't qualify under those restrict under those conditions and so quite frankly there are reasons that the federal regulatory for created these restrictions are relocations the columbia gases and currently the perks position negates all of these restrictions what's completely it winders them a dead letter and the purpose behind these restrictions has to be considered we're dealing with something that could austin simply be considered a relocation or replacement or both and this is where the ambiguity comes in there's restrictions on rearrangements there's written those restrictions on apply to replacements can we read replacement in a way that renders the relocation restrictions a death letter i think that interpretation is a poor one and one thing that we have to consider is that in imminent domain situations especially when eventually really are is that our function what has to be someone's function your honor so whose is it that's the question i'm trying to ask you i believe in these imminent domain litigation situations it would be the responsible unless further gives an interpretation that's clear on what's adjacent and what's not i think it would be to the court for the courts to decide if the agency is declining to interpret what they mean by when something reaches the lining goes from replacement relocation then the only body left to do that of congress doesn't do it if the if the agency doesn't do it is the courts i see my time has expired and i thank you your hon of litigation since may of last year but this is this is an important principle of law that absolutely is the reading that the the apple east take it what's really important about this is it would be no bite under one five seven except a difficult opinion and adopt a webster's dictionary have you would never be able to exercise that right because really only that would be able to or would you be able to buy just what rick said back in two thousand and three which is if you're not going to be in and you're not going to be adjacent and you want to take somebody else's land that maybe you should be going back and talking to the agency because like they said in most in the one circuit that's what the regulatory body is supposed to do make sure that corporate actors like when you gas a lot of worry citizens will do maybe are not out if you were talking about a case one hundred years ago with a railroad next to a national park as opposed to going through york and residential areas does that make a difference in jason well it's certainly different fact pattern but i think it's it moves it's moving the existing facility and so that contemplates as we would take this fifty year old pipeline that's unsafe and dangerous and we would move it somewhere excuse me on the existing property or maybe that way does it mean you would be altering or moving it in the sense of replacing the plated so but moving to facility in the sense that you no longer have the pipe running through property owner x s land you're going to proper you are wisely well under this under miscellaneous derangement we're limited to the same property it says it's some part of six little log in the first limitation is also if it weren't every placement you'd you'd have a problem but you're saying once it's a replacement you're here under eligible facility right that that's the thing that definition that sort of pushes all miscellaneous that's one option doesn't apply because it's one of the same property two five five doesn't apply because it's the same property there are circumstances where you need to replace it like here and you can't be on the same property because of in this case a high consequence area you would be going that has weight that so that being gone you really could go back and the your reading is this you could you could write yourself up to philly struck you well i don't think we can because we have to replace the line would be replacing the capacity on this line within the scope of the all the way out to pittsburgh it the capacity be so much bigger that it would violate there are a lot of limitations can increase the capacity we can increase that we can go about the dollar figure there's permitting and has to most importantly replace existing facility and so what does that mean in principle is what i'm sorry you're limiting principle is we've got to we've got to be under the eleven million cap unless they waive it well it is more than that it's also limit to replacing the existing facility which is what we're doing here it's also what is that you know i don't want to get bogged down in some antics to have to leave but that's  i mean that's essentially right where we're moving in this case one pipe with a specific capacity and we can't use that as an opportunity to for example build two new pipes or increase the sure you're not going to increase the capacity but resolutely and i mean these are your words not mine you could build the same capacity pipe that is a pipe with the same diameter with the same pressure behind it and routed a much further distance if if the urge struck you that right now i don't think that's right i appreciate the courts or the characterization of what i'm saying that's not right we're what we're asking what we believe the regulations allow us to do is to replace this pipeline and it allows us to go outside the existing law by the way and we're well within within exceeding the rights of the c f r to enforce it so the burden is on the landowner to go to for it say they're exercising eminent domain on my property on their thirty year old certificate outside of the right of way they had the burden isn't on you as a private suggesting that they should or need to do any of that but what i am saying to you is that if we're if we're going to nebraska or otherwise doing something that's inappropriate for has the ability to stop it in the context of this litigation that the question is was the district court correct in adopting a definition that says replace means at the restored to the original location and that that definition is except that the reason you used not using the word relocate no relocate  talks about or relocation that's that's the language of it it to relocate on the same party that's correct because if you want to relocate and you want to relocate someplace outside of the the boundaries of where you are then you're very much case as well aren't you