payment on a retail bill that was no dispute as to the retail charges or the retail human they withheld the payment by claiming they're owed more for their output that sold back the middle for ordered reconnection an action in federal district court it's the federal court that determines if the perp was violated and as the federal court the term is if it was violated what relief to grant if any injunction stays whatever in this case first you serve both functions of the lengthy it was a lengthy footnote at the very least you didn't lead with this right i mean we have to do some searching to find that adequate you're not say that it was since the petition was mainly focusing on of what it cost that was the beginning part of understand your argument would be we would have to vacate the injunction order yes right but we wouldn't say anything about anything else with because we don't have any jurisdiction or your honor i think that the federal district court determines a perp was violated accordingly the petition for review was dismissed so i'm wondering whether under your view of the case we need to at the best the most we could do would be to va the injunction and dismiss the rest of the case for lack of jurisdiction here i would i would i would say that the determination by for that the is that your view is your view that the first order here has no force unless they try to enforce it your honor this is a they didn't just issue a memorandum of law yet they said you shall we cannot understand so magine we vacate that portion of their order right so that that's caught i'm not sure we can do that by the swimming we can right then they're left with something that is very nice says what they think but according to code generators it doesn't fix any rights until doesn't take any thought to do that other than here is an enforcement injunction here is a case that says you can't issue an enforcement injunction unless you go to the district court and of the case we don't have to discuss that first rationale works reasoning nothing it's simply that they don't have authority to enforce without going to the district court understand your honor i would just submit that it would create a big you idiot i think the industry as to whether still has legitimacy such that it could be enforced against others in the future it wasn't forced against us oh man i magine that there were we didn't have this injunction part of it right all they did was have these findings i think i know what your answer is but i'm quite sure why not wait until late since the since they can't enforce it against you except in the district court why is that coming here why don't you just wait until they try to enforce it against you and th your defense is whatever your defense is your honor we're not for profit cooperative we have a federal agency ordering us to take a specific action if we fail to do that who is first has the ability to impose a million dollar producer penalties we simply cannot take out even before there was a district court order yes i mean it's all true purees but first has the ability to impose penalties of million dollars per day in different aspects of his l risk and who knows who are already being sued in state court from violating proposed by the same complainants and who knows what other tribunals are equipped to do with a decision that said you shall reconnect and we failed to do that the first rule of law first interpretations are supposed to be in the district court that's correct you're asking us to make one here right now your honor we didn't create a procedural problem for quarters that by by making his viewers actions and all i'm saying is you you shouldn't be asking us to want to tell me i'm right only to the extent your honor that it was integral to their determination that we violated purpose which is what the federal it please the court for utility customers in iowa issues associated with retail electric service including disconnection are entirely within the jurisdiction of the i'm the i you be like the  off the q f connection ok now that necessarily cuts off the audio it doesn't claim it has authority over the q after next right it's the retail connection that's what you just said i has jurisdiction over the retail electric service yes the problem here is that the dislikers didn't pay their retail electric yes but they only have one connection has both their retail approach and their q f service right the same connection three more seconds i'm well i would say that part has exact same authority to order reconnection of retail electric service here as it does so one of the strikers to pay their bill absolutely none if anything second titles of wine and three reinforce that states continue to have jurisdiction over retail electric service those actions require states to consider a list of policies which include retail this connection and the states can consider the policies and if they're appropriate for that their jurisdiction they can adopt them or not congress approved really left disconnection and related policies in the hands of the government prior approval requirement was not inactive through such a process enforcement is improper because it wasn't properly promulgated under section two ten day of purpose i think the above us vacation number five on page ninety two which doesn't seem to have any context at all the list of the specifications of the errors and i was again action to try nature perp only provides the commission with limited authority to bring foresman actions in didn't they didn't have to say that they didn't mean to say i think when you read the entire specification of error number five and and associated with the arguments in the actual request for hearing this oh you have to address it now because this is the main merits question before you so take a flyer on this ok i would say that all first orders require first to go to district court i think it be true here i think also so they can order the first part of the commission's order which says medlin shall reconnect that was improper they can't do that without going to just record and asking about the district court to golfer would have done is gone to the district court i'm not sure what the commission would have done i think that would be a logical next step  also think there's an open question whether this is even an implementation challenge against the commission has an address that you have perfect contacts the commission will issue a declaratory order but we have nothing here and what do you think he was doing here i think the commission was trying to fashion a remedy nature was it not issuing an order on penalty of contempt the order does not say that yes there's one ordering paragraph that says midland shall reconnect it doesn't have a time period by which middle has to comply it doesn't say it's under penalty and in fact in that same order they are the commission is ordering settlement procedures to try to get the parties to work this out this is pretty tory then or is it  what i think it could have authority to say this is a violation of our regulation section two ten h only applies to implementation shit is there a difference between saying this is a violation of our of our regulations context it relates to rights that's correct but is that context your own words when there is competitive markets or the ability to purchase retail power from come from competitors there's no obligation to sell and so it congress limited the opportunities here for terminations absolutely the commission i'm sorry you're saying utilities ford does not have jurisdiction over middlings rates it has jurisdiction over non rate terms and conditions but when there is a dispute over the avoided cost free for the no problem i think that the legislative history and purpose of purple supports supporting small renewable facilities as opposed to the traditional mission yes i think i mean there's loading conditions you need to come to the commission if you have a lower loading conditions you need to come if there's an emergency i don't think it's so on reason of all to find that  connection would not be allowed of the circumstances i'm still stuck on our jurisdiction sorry before we get to the merits so do you agree that ferg can not issue and enforceable and order except by going to be district court and that in the normal course what for does is issue a clear atory order which says x in this case midleton violated purpose and then if it same as a declaratory order and the vacating order in the code generators case that is an order that neither fixes the rights of any party or does anything more than state how ferg interprets its own regulations correct all you're doing that's correct felt while since since that is true of the entire body of the opinion we don't have jurisdiction over that is that the other of that part is that correct that's correct that but as for the first part which does seem to fix the rights of a party namely it orders midland to do something doesn't just find a violation don't we have to vacate that because that that i still think that i suppose the commission could send us a letter tomorrow saying that in fact a of the order we just made a mistake it wasn't really an order and they're not under penalty of a million dollars a day and they can do whatever they want to until the force in order comes to the district court but it's not likely we're going to get that letter because who can represent the commission's actual view without a vote is there any now i think they would need to vote right and they're not likely do that today or tomorrow play very busy people yeah so isn't the right thing to do then to vacate that portion of the order which is clearly against the is america i'm not in terms of interest i'm interested but i'm not discussing the merits discussion that you and judge williams have i'm saying only in light of section eight twenty five p the federal power at which he has exclusive jurisdiction the district courts for properly interpret it its regulations the near term am issue has nothing to do with your view or mine with the question of the enforcement authority of fork that's correct that's correct if you're claiming it gives you additional forty over a clear jury of orders about whether terminations are lawful or not but you are not claiming that it's somehow gets around the exclusive jurisdiction of the district court to enforce correct correct and as to that you're just asking us to apply our deference right yes there are a silhouette as of last year yet one final point i i do think that the commission could provide opportunity to address the scope of its jurisdiction and interpret its jurisdiction underneath the statutes well not really because the section that we're talking about which is a twenty five p c is the jurisdiction of the federal exchange said yes that was a negative pregnant from ten i think that there could be things other than implementation challenges implementation i thought i thought maybe maybe i misunderstood the exchange but i thought you were relying on to ten am for the subs merits point that it has to for you to declare a violation here but not that the that the e p a act as anything any change with respect to the enforcement afford that is the actual for you go order somebody to do something on pain of something my head about that that's what you just said i was crying because of for i am just well i am just saying that the provision that says that the commission has to go to district court to enforce it commission unfortunately this is come under any provision of h other than one and two h one or two has come under anything i could have possibly come in or anything  else it could just be part of the inherent authority in the commission in finding its regulation was violated what would that that that would if it had that inherent authority it would have that in there and everywhere and yet each very clear about what to do under those circumstances approval under section two ten am they've linked that back in various sections of the orders paragraphs thirty eight and thirty nine of the initial order this connection should not occur without following the commission's regulations for authorization to that's wrong it's in the conjunctive so if you're in a state without retail choices like iowa and thirty five other states you're in a state like i want without retail choice you can never satisfy two ten and five i see this question which are probably should've asked for break while the next