and acted as a law on december eighth two thousand and the legislative history of that act i think it's pretty clear that they did not envision it as a having any impact on snake river case but  that in order to try to address the issue that had been posed in this court's first case they set forth some standards for active control by the  regulatory agencies and gave them certain jurisdiction but it was quite clear from what they did in the legislation that they were seeking to require the actual regulation and actual decision by the regulatory agency on the merits of these questions and that's never happened the last been in a fax since december eighth two thousand but there has never been any ruling by the state public utility commission to the effect that snake river is not of the pacific or doesn't have to provide wheeling what about this statement on page public utility agency had the authority to do this or do that that that meant that there was an a plus the munity before the state had acted now one of those provisions of the state law required pacific corps to a court that the commission ruled that it could not grant them summary judgment that there were genuine disputed issues under the law and at that point that judge  and so that it goes on the say so that the details of the rage are priceless had been established as a product of the leverage state intervention and the other two cases the her get case also expressly provided that the state had to actively go into the the merits of the case before it and determined that in fact there was describing what was required of the midtown test with the other cases which all say the same thing specifically noted that there had to be a determination by the states on the merits of the particular case before there is the issue really whether or not there is in mechanism which the state has to be involved in order to grant or deny the request that is i've read approval of the state regulators or you can ask them where you are that need to know that i think i think that it's not a real analysis of snake river walk because under that war versus alabama and in that case well no i think the case i'm thinking of that's more important was with the nugget case in the ninth circuit and in the earlier appeal both  e core and the state argued well if there are a number of decisions that shows the agency is working to decide various cases that means there's state action immunity and this court rejected just section of the opinion talking about the response to the argument that pacific or was making to our prior hamel that the statute might be written in such a way that the state didn't have to actually review individual applications that's not what the idaho legislature did well well they did but what they have done is set up a procedure where they said you pacific or they don't have to we'll if you come in and get our approval have immunity by costs they are complying with the state statute and that means they don't have to to we all they could easily i think has decided question number three with  show that in fact at that point they were refusing to we'll i have a problem with that and you tell you what i read there steve i read what the judge said you know every place in the record where they made a statement instructions are pretty they're pretty carefully vetted by both the plane the fan defense bar and it's somewhat unusual it seems to me if the jets goes off the trail element that snake river valley you know that it requested and pacific court denied access which it which isn't in the pattern instructions for the i think the pattern destruction had required we had sought it to what have been simply that they have the ability to convey a power for you without any harm to their other interests and that was left out and this one was put in which was geared to something that's really legally irrelevant and that is that you have to prove at the time you file a complaint that they were refusing to wield their whole history for three years prior to that time and we have the  documents of of the numerous prophets as to place for the company they said flat out that they were not going to snake river to serve any of their customers or compete for any of their customers and  the actual thing that that was improper to west that they sought to say that we had to accept an application to file a tariff at the federal energy regulatory commission and  explicit proposal to for willie services and what came back from the company was a set of their tariffs for tariffs well those first tariffs had expressly put provisions us when we read those tariffs and i than a lawyer for the f e r c for many years they were not eligible customers under any of the terrorists there actually three tariffs and if you view all three of them even the companies witness mr purchase chaddy agreed that we were not an eligible customer under any of those three tariffs so what in fact they were attempting to do was to say that we hadn't made a filing  about a number of these other issues usually the first guy uses one thousand and a half out of the twenty minutes and the second one gets to say who he is i think you really want to be limited to never going to have any further process because of what's occurred or well the commission denied both snake rivers motion to dismiss and responsibility and they said well the commission cannot act until it has a better record and it's directed the parties to provide that record they haven't done it there are proper procedures within the rules of the commission to kno that positions to my understanding is to request status conferences to move this along if it's something that they want to do it's not for the commission to say we're you know we're we're just going to rule anyways they need a better record they're waiting for one of which they do and that's the commission has not acted because they were has not complied with the commission's requests for supplements to the record my understanding is it's not just snake roberts both parties the commission wanted more facts first of all wanted them to present the stipulated set of facts apparently they're unable to do so but what the commission's ruling i think it's a tab and in the record for the idea the idea of experts reckon it's to have one forty state action of the unity but it looks like the legislatures reading snake river wanted their sorting themselves in as an act of supervisor but if it if it turns out they're just sort of like  facilities that the commission has ruled upon that the legislature took to heart this court's invitation and two months later had an extraordinary session had nothing to do with nothing else but state action supervision avesta and read every single actual decision of the specific conduct in other words you don't get state action is just only after the commission finally rules upon pacific course petition state action that's about is th spite of those four decisions as evidence that the state has a regime to supervise and is in fact supervising i think that's the case here no longer can you no longer can you opt out of competition no longer can you have any sort of contracts of divisions without commission approval and when you declined to provide retail wheeling you have to go to the commission for approval and that's what's been that's what this is the core responded to the only request we received coming talk was we don't know exactly what it is you want and then we were sued i think the appeal in this case makes clear that snake river on damages and affirmative defense issues that this court need not even reach those issues until it first determines that judge will now made some reversible prejudicial error in his rulings related to liability instruction number fifteen on first it just as a procedural matter it's simply inaccurate to say that shake river preserved its objection to that instruction on appeal there were two inform jury instruction meetings and then there was the formal at that formal meeting jacqueline milledge presley told counsel for snake river that they needed to make whatever objections they had on the record because any discussions that took place and the informal discussions were to the final let me see if i can find that really quick f right at two different sections to go over these informally we call that of course everyone else generally to state for the record any objections you have recall that what we discussed informally was not on the record and therefore you'll need to either the question about the paragraph at the end of instruction fifteen i don't specifically recall what the discussion was with court as to why that paragraph would be there but i submit your honor that it's not reasonable to assume that the jury got all confused when it had four or five specific elements of a claim of snake rivers claim and then two instructions later had a full explication of the regulatory justification and each and issue it's not the case that snake river didn't know about our reliance on and the regulatory justification doctrine until we raised it midway through trial we raised it on numerous occasions in briefs motions for summary judgment had oral argument about it they were submitted briefing about it and so the issue was there it is true that the oversight in terms of whether or not it was actually pled in the instructions that he laid out the procedural history in some of those things to inform the jury of what would happen what happened where the parties were and in fact that may be part of the reason for the paragraph at the end of the instruction fifteen to sort of you know you don't have what we have practicing in this district which would be frequently a one hundred page pretrial order that would lay out in exhaustive detail all of the remaining contentions what issues were in factual a course position which if i were if you're just reading it frankly it's confusing to me as i read it whether what he's saying is what pacific corps argument is or whether if you were a juror you think that this was part of the instruction of all of the long i just find it very unusual and i don't think it's appropriate but if there was no objection to it the elements of their claim is what snake river is claiming that they wouldn't be there if they didn't claim to find elements of the four elements i'm sorry the five elements of their search will facilities refusal to back into life's never made a proper application an instruction on that if they think it should be the law in this kind of a case i think that it was a objected to i would think that's improper jury what's out there what's at stake what has to be decided this is the first page one six one is what's your vehicle names the second page the last paragraph is what precipitates core claims with respect to those things let me ask you about something sort of related and i was the district judge i remember that there were a bunch of cases saying that the court of appeals only reviewed errors in instructions or abuse of discretion and that the district court had broad discretion in the manner of drafting the instructions is that still the law the nicer that still is the law your honor in fact in mcdowell versus  federal rules the old english rule that the federal district judge was actually free to comment on the evidence is that still there somewhere and nobody ever did it have said it was they don't know if a i'd have to check but that is true it doesn't help me my two thinking when i was a district judge sure everybody objected to my not using their forms but that didn't tell me what their objections word of the said i'd give them the way i would do it each side with submit proposed instructions i wouldn't use either side that i'd stay up late the night before writing a set of instructions get my secretary to type them up and fix but just tell me you would have been happier if i just don't you said a couple weeks ago that doesn't help me at all for a while minor and fix the procedure the judge used here we had long discussions off the record about all these things and all justice place yeah and i'm thinking how is the judge supposed to know you made a legal error if you don't tell him in language addressed to his instruction and if what you tell them is that you don't like this one sentence it seems to me if i put oh absolutely that that one was  know that's in the record because he says here on page one eighty three we have jack to all of the instructions relative to the regulatory justification to fast on the basis of the points in the brief we filed on february fourteenth the brief we filed on february sixteenth and a brief we filed this morning on february seventeenth and those are all detailed problems with with the regulatory  justification defen