party to prove that they're not in privity if is exactly what happened in our case this case was there was a motion dismissed it was filed there was no oral argument and it was decided on the papers the judge on this on her own raised the issue of priv and we did file a motion for reconsideration which was not heard so we were never able to raise the issues that would show that we were not privy further it's a concern to us that she never referenced the notice letter which was attached to the complaint and made part of the complaint and referenced it fully incorporated it into the complaint and there are several issues in there that that raised on christie as well as destroying rest of the heart of the issue that other of their plaintiffs of their members were being affected by this pollution clearly the state even if there was pretty can not represent these private interests and they were alleging there now the issue behalf of its members they have the they have standing to presume to represent their the interests of their members get anything passed city now it's not a private claim that they're representing but their members do have a right not to become ill or have to spend extra money purifying the water or something like that in a case in which the private interests that are being  protected by the court really have to do with the courts a sovereign interest over its own waterways for instance in the alaska case it was recreational interest but the court clearly recognized that the think that you can personally i don't think you have standing to pursue damage claims on behalf of your members so here and if you get in the public domain then it looks more like race judicata is the problem this diligently prosecuting an action under that section i don't see the only  were not alleged in the previous sites and were not arising out of the other violations and were not you know what we did alleged violation of the consent decree when we allege that they failed to to follow the plans and so forth but that was not part of the new claims the new claims were that there were new violations but they were three sites they were three places that were in the cont completely new facts here you can't have a consent to create that gives you a perpetual shield in the future let's say that that is that they completely removed just facility and somebody else put the gas station there with brand new tanks and then those tanks leak does exactly the same point in the debut case and he references lawler versus national scream service corp which is a supreme court case for the proposition that prior judgments do not bar subsequent that it was just raised without any notice to us at all so there's several places that we do allege new violations and i can i can give you those one is on excerpt of the record one page fourteen page sixteen page twelve and we're talking about the continuing violations of standards that are occurring there and i understand what the court is saying yes obviously we're talking about oil spill obviously we're talking about contamination to ground water and so forth and so on but we're also talking about something that the court never talked about i'm sure the one hundred page five in on page seven these are this is clearly trans actually set of facts completely trans actually different criteria in the horn is completely different here instead of is the key issue in this case is whether river watch the appellant has played a new wrong and what we are saying is they have not played any wrong all they have played is potentially new harm and new legal theories based on the same set of op we did our argue raised judicata yes we did and we did argue strenuously against any claim that there was any new harm resulting from continuing migration and that's why we said why we cite the stop case well he's you know ever watch  your response to that i understand and we would disagree vigorously with that because there unlike the headwaters case which river lodge submitted last week in the headwaters case the judge apparently the complaint coming came in the judge took a look at it and threw it out right away the responding party would have to bring up in their opposition we raise the issue if they want to respond with a pretty argument they could have done that in their opposition and unlike in the headwaters case they did have an opportunity to bring up pretty enough in a written opposition submitted to the judge  in the motion to dismiss yeah yeah we did that because the way it came up was that river watch said but the contamination continues there's new migrations there's new violations every day but the issue was that the trouble with was the with these three sites where the underground storage tanks that have been removed and everybody knows that environmental contamination case you can have a great investigation plan and remediation plan but the contamination may continue to move over the sometimes years it takes to violation because today that contamination moved another contains all the same claims that are brought in river watch to the case that's before the court today and then the next argument that is you know the district court grabbed onto the consent judgment and said this consent judgment is in the public interest that was the river watch as claimed this consent judge not properly give humble petroleum notice of what the claim would actually be that was the basis of the you know judge armstrong said it never addressed the notice judge armstrong looked at all the claims that everything is barred by the consent judgment because the consent judgment says this this is intended to resolve all the matters that the state could have brought with respect to this same set of operative facts and that there's no defenses for them if they thought there was a pretty problem which we didn't see because this is a state acting in the public interest and river watch purporting to act in the public interest and pretty does was gets to the three pretty good case for trying to develop that that we can understand ok well what river watch is saying is that it seems to me the only argument they're making on pretty i may be oversimplifying is that they may have citizens that are not california residents we don't see that in the complaint or the notice and even if they were citizens that were not california residents or members of a watch we question whether they even have standing to bring a claim in the public interest in california about use an enjoyment of california natural resources headwaters case is completely distinguishable here because it talks about a succession of private plaintiffs it's a different analysis when you're looking at what did this private group represent that private group what we're saying is that it's unquestioning that the state of california represents its citizens and there's nothing in the complaint to set aside to carve out river watch counsel argue that they they may be asserting claims of illness or economic harm it is true than in the states where the standing standing but there's if you look at the claims for relief they're not seeking any damages they're seeking an injunction which the state has already obtained and they're seeking civil penalties which is states already getting their i'm not seeking any damages with respect to the can and i give i would do theirs they set the headwaters case to say that we didn't get a chance to argue and it's just so darn strong didn't reject the complaint without considering papers all she did was say i don't need to hear oral argument which is fully within the judge's right s with respect to the college events just to clarify the state filed against river watch and april of two thousand and it was two weeks later that river watch filed their suit and then there's he was dismissed in october occurred after the consent judgment it's just if if what they wanted to allege that there is are new tanks in their brand new leaks then they could have said that very clearly and it's just simply not in the complaint you what is your position our position is that pretty could not have been an issue based on the allegations in this complaint because all they were saying is that they're a public interest group with california but incorporated in california bringing claims in the public interest of the state of california and when we looked at that and we looked at the state's claims the state covers claims on behalf of the citizens of california and our mind pretty just wasn't an issue and i asked him what the new ro of continuing migration of contamination and we submit that in any environmental case where there's a settlement the contamination doesn't stop migrating just because the state has enforced a consent decree against the site owner if that were the owners understanding and working with the local agency and i don't mind at predicting the predictability of the settlement the bottom line is a problem has been addressed by the courts for overwatch doesn't like the way that has been addressed but under stop and quietly they don't get to second guess what the state agency did thank you very much perry consideration what did you say in there that pretty was raised basically says martin that we wanted to be able to respond to them but the it was never responded because basically when she dismissed the case it was a like that the there's a continuing migration of the plume that the state somehow is supposed to be taking care of then they put in new pipes new tanks that change the name of the station but the owners stay the same and they have more violations because they're dumping more fuel in there on a regular basis the stuff is now having more releases plus they're having surface releases that's what religion that's that these are the new laws and to to have some sort of a perpetual shield that the states themselves do not even preserve it it's not even an argument because again if the states not preserving its right to the states preserving its rights you have future claims there's nothing stopping us from the other bring up future claims as well even if they are transaction related the state did not preclude its right for that