indians lease lands and the second question is whether assuming that a preemption has occurred whether doesn't want to regency has standing and meets ripeness requirements rigged with regard to its action and i plan to address the issues in that order attorney first of the preemption question the regulation on its face does preempt all quotes state taxes levies fees assessments and other charges that are imposed by states or department done to assert preemption they haven't taken any action there's no no filing of any claims or ernie thing like that it's simply a statement which according to them and we'll hear from them is all state charges and taxes are preempted listen to the language from that budget but the fact that the department of interior greases section one sixty two point zero one seven does not pre amps state law doesn't that show that there is no said at the time of the regulations adoption well i guess it's i always like trying to think why are people here besides of the legal issues and it's occurred to me that all right if you can't show any eminent enter in fact and th ordinance the prohibited those laws from being applied on the reservation the question was whether the town of parker had standing to bring its action and the ninth circuit held and in that case that the town of parker did have standing to bring its action because and i'm quoting from the course of this one circus decision the tribes action in prohibiting the application of its charges quote threatened injury to its proprietary interest in collecting revenues and possibility of actual injury to its ability to function as a municipality in regulating persons and property within its regulatory control so that cases very similar to this case the night circuit in that case held that the town  parker did have standing even though even though the regulation in the tribes ordinance had not actually been applied he said that the town parker had standing simply because the regulation on its face precluded the town of parker from applying its was and regulations how does the united states respond to that their argument is not the time to parker's not on all fours their argument is instead the town of parker doesn't apply here because the court in that case adopted an incorrect standing of standard and the court is the united states has argued is that the supreme court has adopted a different standing standard subsequently to town of parker but that's not correct and in fact there are recent night circuit decisions to decisions cited in our brief in which the ninth circuit has cited town parker as a stablish in the standing standard that applies in a case like this so in our view you don't have to show if you're a town or a municipality or state you don't have to show that the federal government is coming after you trying to apply its charges or prevent do that and therefore that the regulation is invalid because it prevents us from doing what we're authorized to do under federal law itself coun yard we think are our laws or the charges would be applicable because they are applicable under the balancing test established in the in the by the supreme court but if on the other hand that language can yo is the secretary of interior has disregarded that language in the federal reserve notice the secretary of interior did not say that there is any applicable federal law that authorizes the application of state taxes and charges on indian reservations preempt all state taxes and charges on an indian leased land and again the eleventh circuit like the secretary of interior did not make a qualification based on the fact that that the regulator that the particular charges might be disregarded it so in our view that language has no force and meaning in effect under the federal government's own interpretation of its regulation our view is that the nice circuit would have the option of avoiding reaching the preemption question by holding that our charges are valid because they're apt they fall within the category of affable federal law and therefore that the regulation doesn't have a preemptive effect but that's not the position taken by the secretary of the interior in the federal  right to challenge federal law that is being clarified by the regulation if the if a federal law is being clarified has a preemptive effect and there is our point is that federal law as interpreted by the department of the interior preamps are charges as applied here that is our argument and because it has that preemptive effect we think we have standing simply by virtue of the preemptive effect of the regulation and there's not a single case cited by the united states and none of which i'm aware which is ever hill that a state does not have standing to challenge a regulation the prince's laws regardless of whether the regulation has been applied by the federal government to the state there's not a single case that holds that the united states aside no case that holds that but are you other hand we have cited numerous cases in our brief the whole just the opposite that where a federal regulation does preempt state law then under those circumstances the state has standing to challenge the regulation and the courts in all of those cases that we've cited have never held that the state cannot bring it parker which i just mentioned the case of alaska versus department the treasury decided by the district of columbia court of a district of this sort of court of appeals for the district of columbia we cited that in our brief united states has provided injury and fact requirement under article three as counsel for does water agency has conceded again this morning it has continued to assess the charges and question the non indian lessees have continued to pay and  you know we're now going on four years after this regulation was issued and this hasn't actually affected doesn't water agency and so it's like you seem to be afraid of what's going to happen and what the position of the department is and i don't you know i know i can't say i've noticed that when there's that you know a change in administration sometimes departments do take and consistent you know they change their position so and he seems to say that the secretary's taking a different position than what you're taking in your brain i don't know so is it your position that sixteen point zero one seven has no preemptive force well so let me just start out by saying your prophet you're  question by saying they seem to be afraid of the if they have a cloud of uncertainty related to this regulation but the supreme court has said repeatedly in cases like texas versus united states national park ospital the association that mere uncertainty in the law it does not give  e to an article three case or controversy and that again that should end the case without an examination of the precise effect of the regulation but to take it you argue but you argue that it doesn't pre amp state law so there's no adversity and therefore no case or controversy so what that does sort of link back to the standing issue well i think that you know even even if the regulation even if the sec dep the interior had taken the position that the regulation was directly preemptive which it hasn't but even if it had there's no enforcement mechanism in in the regulation and the department of interior didn't invoke a particular delegation of preemption authority from congress and so the ultimate question would reside with  an appropriate dispute to conduct the brac or balancing analysis which considers among other things among other things the state's interest in assessing a particular tax which is something that clearly the regulate neither the regulation or the preamble sought to address and the eleven circuit's decision in some of the tribe is instructive here with the eleventh circuit said was look what the department of interior did was basically articulate its own view of the federal interest in this area in a general sense it did not conduct the sort of particularized inquiry that's required under bracher and that inquiry needs to be conducted on a particular rise to basis once a case or controversy arises now in that case what happened was you actually had a a tribe a non indian lessees that said no we're not going to pay your charges and that gave rise to an article three case or controversy and that may well happen here although as a as i said earlier we're now going on for years it hasn't happened yet what now i'm still hearing a little bit of government state you know where the government trust us we're here to help so what is your position on whether it has preempted force so section one sixty two point zero one seven does not operate to preempt any state charges and just speaking for yourself for us that we can for the department of the interior and that's what we told the district court that's what we explained in our brief that's what we've explained in briefs filed in other cases that is not operate to preempt the charges what it does is says here's the federal interest in this general leasing area and the department of interior has that general view and may if confronted with the question take a specific position as to the whether a particular charge is preempted in the future if that comes up with the department of interior simply hasn't been presented with it so what we have not taken a position on and i want to be clear on this is whether any of these charges are preempted under any source of law that's a question that the department has not was not confronted with in the administrative process you're saying is not preempted under the regulation yes that's right the regulation itself which is the only thing that's been challenged here does not operate to preempt regulation interpretive or life site it's certainly not legislative and it's a call interpretive i think perhaps would go a little bit too far even it's more akin to the sort of statement you saw in national park hospitality association where the supreme court said look this a statement by an agency giving its view of existing law but ultimately where the agency in question did not have the direct in foresman authority there really wasn't the dispute wasn't wasn't right there was no standing the increase of mesh in this context but the department the interior that keep in mind these charges are being assessed by d w a on non parties to this case and the question in the department of the interior is not saying we can go out and say no due to the way you have to stop imposing these charges the department of the interior simply issued regulations related to its administration of leases between tribes and non indian lessees again neither of which are party to this case and there may be a situation where d w a can bring a suit or the tree the tribe or a nonparty indian lessee can bring a suit against a to dispute the bill of these charges but that's not the case we have here and that's that's the point is that at the end of the day d w a what they're trying to do is get around the ban on advisory opinions by simply saying well on the gives us an out this means that our charges are not preempted so that's their that's their primary position and if that's right then there's clearly no case in controversy here but what they've done now in order to try to manufacture a case or controversy is essentially drop that claim and say no no preempt even though that position is inconsistent with everything that they've done for the past four years and so you could make that argument there's back to any regulation say we don't think this regulation does x but if it does do x that it should be set aside and thereby get into court when there actually isn't any sort of injury in fact within softball your three suggests that preemption is determined by the application of brocker by judges but isn't it true that federal laws or regulations have preemption long where congress delegates preemptive authority to an agency in an agency can thereby issue a preemptive regulation and then there is the sort of greater area of of preemption involving indian law department is not suggesting that we would get something akin to chevron deference on the ultimate preemption question what we are suggesting is that when a court is conducting that analysis in a proper case where there is an article three cas controversy when looking to be federal interest portion of that analysis the the court would then have before it because interior may not be involved in that case depending on how it arises head will have before it interior statement of what  federal interest is generally in this area of leasing on reservation lands and so that's all the rest that's all the regulation purports to do the fact that it was published in the code of federal regulations doesn't change character into something that has a direct preemptive effect and so i just go back to the basic point is the easiest way for the court to resolve this case is simply to point out as a has admitted they're continuing to assess the charges that on indian lessees are continuing to pay them the only reference prior to the complaint in the in the declarations is a letter from the tribes saying hey we think you're regulating we think that the particular charges that you're assessing are preempted tell us what you're going to do about that nothing further if anything that would give rise to a suit against the tribe that would be perhaps a closer question although you know i might change it a little bit like you're saying  reduced revenue well i guess in the absence of that her mere saying no if there's if there's no article three injury and factor than a state does not have that than article three injuria is a is a hard floor the supreme court  given us authority to preempt we are hereby preempting your law the question is what could the stake at present for smith review if there was an unfortunate mechanism yes i suppose it could but that's not the case we have here what we have here is there is a regulation issued in a context the department is not saying congress has given us preemptive authority that apartment is not saying we have in force in authority to directly preempt your charges the department is not the one on whom the charges fall and so this is three steps removed from the situation your hon it's possible but you go back to your initial question the fact that desert water agency is a subdivision of the state of california does not alter the standing analysis article three is a hard floor they need to show that they have suffered an article three injury in fact and all that they've said in their declarations is well if it turns out that the regulation is preemptive then we'll have suffered injury but that's a big if and what there's what they're trying to do is essentially get judicial review in the face of uncertainty and if this court were to allow that it would go and open up a whole host of cases not only with respect to this regulation where nearly every tax assessor would be in the same position and could bring the bring the dispute before the court but also nterpreted the regulation taxes no what the agency did was start out by in the in the preamble start out by saying this is a question for resolution under the three factor balancing test which includes federal state and tribal interests the department went on to explain it viewed that there was a very strong federal and tribal interest generally in this area that covers the field but the department did not go on to examine with respect to any particular charge the the state interest combination with what precedes it which is it is subject to existing law i e the three factor brecker balancing test but secondly i concede your honor that if you take that if you just took that portion it would suggest to the department was making a broad statement about about preemptive effect not of the regulation itself but of the the the general federal presence in this area and the strong tribal interest but it did not the point is it did not do that with any particular tax and the department made clear in its through the caviar in its regulation and through the previous discussion in the preamble that it was not making a final statement as to the that the department of the interior up applied bracher generally with except for that portion that deals with individual state taxes and the eleventh circuit decision is illustrated because what it did at the end of the day was to say that look under the brac or balancing test one form of tax in this case was preempted in one form wasn't in full can by conducting an analysis that the part of the interior simply did not conduct and wasn't present with and so in a proper case where there is a an actual concrete dispute between the taxing entity and the taxpayer on whether a tax is properly assessed this court may be forced to confront the question with respect to any particular tax but that hasn't come before the court in this case if this comes up as it may in a dispute between the taxing authority and a tax payer the department of the interior is not going to be a necessary party to this case it may not have the resources to get involved in an amethyst or intervener type situation all of these cases but what the department of interior has done through this regulation is to issue a statement about its view of the federal interest now and to say that the department of the interior by saying what it interest is is there by preempting is is a step too far and the district court got that right and so in conclusion your honor i would just say that the simplest way to resolve this case is really you don't even need to get into the preemption question at all all you need to look at is what is the injury that desert cooperation c has suffered as alleged in its own complaint declarations and it hasn't let thank you task your time as expired thank you mr wilson you have to reserve time regulation it is not able to obtain revenues that are necessary to a choir water supplies to supply its customers in our view the but is there a showing of that have you actually sustained losses we don't i don't believe we need to at the pleading stage are we made an allegation or a complaint that we do not have the ability to obtain revenues under the preemption of the regular life if there if in fact there is stage these allegations that were referenced my judge callahan have to be accepted as true now the united states in response to judge are wrong since question judge rawlinson asked whether united states disagrees with arm statement secretary of the interior interpreter the regulation as having a preemptive effect and the united states said that if the statements taken in isolation the answer is yes but if you consider what is what precedes it then the answer is different but there is nothing preceeding it that says anything different from what judge walton quoted the entire secretary interior federal register notice is before this court there is no equivocation or qualification in anywhere in that statement by the secretary of interior that maybe under some circumstances state taxes and charges might be valid nowhere does a secretary ever say that the secretary instead also asked united states about how the eleventh circuit in the a seminal tribe case interpret the regulation and as i said earlier the eleventh circuit interpreted the regulation is having a broader and absolute provides that leasehold or possessory interest is not subject to state taxation that the secretary of interior is federal register notice outlined the brecker test and then apply to generally counsel your time is expired it is i have to do i thought i had fifty two seconds you know you're going to see did your time by fifty two seconds sorry about that is one defect in our you know our clock system i wish we could have taken care of that but