decision an issue he was very clear he said he motions for summary judgment he said to me all right this case is here on cross motions for summary judgment the central issue being the interpretation of correct it's not even primary primary you're you you asked them for a modification we know we gave them notice we have no need to give them even notice you didn't need to give them notice we gave them no no you didn't need to though didn't need to work required to under any of their regulations because this was a conforming sign we just gave them notice so they would know what we were doing or trying to be a good citizen the district court the said no the best equivalent here is this is building a new sign it's the giant vertical one now suddenly going to be a big horizontal that's like a new one it would be covered under section eight hundred dollars i would disagree with them strongly because it the sign stays the same we're just cutting part of it off or modify we do that every day and part of the case with mississippi supreme court changed is that the way they've always interpreted this is the st time they've done this and say wait a minute if it's over forty feet in height we're not going to take it down all those signs seven on interstate ten going from here  in mississippi that is correct they so so on that notion i'm not saying this is just terminated for your case but if it seems like it all was appropriately they are and then i admit they didn't seem to want to resolve it they tell you to go to the legislature and they don't try i did try so so his ruling is one of exhaustion correct correct that was his turning point he found in the what's your best clearest what's your best case that there was nothing to exhaust taylor vs us  treasury it defines this court define what is primary jurisdiction absent that becomes jurisdiction again it's got to be clear and over quizzical that the congress or you misapply legislature delegated to that agency exclusive jurisdiction to decide this question there are no congressional enactment of public a bill here there is no mississippi statute that a click does that what the status argued is this b act that sets up the mississippi transportation commission that month i think it has twenty some powers among which is to have pins service plans their employees it's nothing to do with appeals but yeah i'm not denying that within the whole scheme of things the mississippi transportation emission regulates outdoor advertising but they don't provide for any appeals one thousand eight hundred doesn't apply because they admit it doesn't apply i mean judge corona did not want to address this question if he could find a way not to and so he came up with this primary jurisdiction but he was simply wrong and so if we're looking at remaking the neary guess here if we're looking at the mississippi law the case that seemed most in favor of your arguments was hawkins is weems those two cases they tell you that if there's not primary jurisdiction then do you still have to exhaust and they have the five factors that argue against it and i won't go through all of my did in the brief the big one though is it's a question of law and do we want the mississippi transportation commission sitting is a full committee to insurance agents and a traffic consultant elected officials deciding continuity statutory construction while the stance is ambiguous and i of course we don't want to do that and that's why that exception has always been there that if it's a question a law is the province of the courts not some administrative a to say that the regulator should interpret the statutes that direct their behavior you think that disagree with that when it's a question of why all the courts make very clear we and others make clear if there is factual questions that are within the providence of that  agency then they can resolve those but not questions of law and when that's the disposition of the case turns on the question of law it really it should go to the courts without the requirement of exhaustion and in this case there is nothing here to be decided by the transportation commission fact was the sign is what it is we told them they said we apply this statute and it's over forty feet and you can't do it so it's purely a question of wall we'll give you a hearing now  they did not do that and i beg to differ with judge corona said they agreed to give you a year these gentlemen and i love them to agree to give us a hearing room of everyone but they don't bind the sphere there was a motion to reconsider by you know oh well we were in the letter national reconsider their position to get an answer to that no leg nor that letter too so they ignored every opportunity every chance i had to try to bring this issue up and get it resolved they they cannot bind the attorney specialist in argument they argue that this one enabling statute is broad enough to give the m t c the power but if you re go what court do i go to then i'm stuck i have no remedy and i think i'm entitled to a remedy and it is a judicial question and i think the district court should take this issue and make the hard decision about interpreting th statute you're not asking for a modification of construction you want to declaratory judgment about this statute and presumably all signs that were built before two thousand and eight that's what you're looking for a record that's correct we have over one hundred signs that are infected by this new signs that exceed forty feet in height that were built before april th two thousand and eight so there is no primary jurisdiction but with due regard to judge roll he just wrong i  noticed when i read read his opinion this morning go back to the the taylor case this court case it was dealing with an i r s regulations and it went through  while i think under this court's holding that's an that just leaves a huge gap that you haven't made the case for primary jurisdiction that that eliminates the right in the district court to simply say have jurisdiction because of that public body to decide whether the statute is ambiguous to apply the rules of statutory construction and i often think we want that just really down and i made the point that this is an elected body and they're very subject to lobbying and whatever i mean as whatever's in the legislature is one of our competitors when i got the bill killed what do you think if we wind up in front of the whole transportation emission they're not going to be on their lobbying them saying don't don't help them are that's not the way we want to interpret appeal or what they are three elected people they're not lawyers we don't want them doing statutory construction construction and again in this case if we say that if you find that the statu and i'm talking to the empty scene and the statue is not ambiguous and we're going to plot is written we've got a ten million dollars you know reverse combination inverse combination case well how are they going to handle that are we going to be comparable they're going toward us damages i don't think so so it's a nonsensical result i think the only sensible result here is to reverse judge who wrote his decision send it back to him let him decide the cross motions for summary judgment and make a decision and we might be back but he may not that's my principal argument list the court has any questions we appreciate it thank you counsel  you your brief wasn't enthusiastic defending the exhaustion requirement it's five pages long in argument five cases cited i think that the district court up with it and here you are defending him which is appropriate i just the brief was very thin yes and i'd say that there are things about the way this was handled on my part that i do regret not being as alert as the district court was and finding that remedy that he did and what i do think that the district court discussion and application of the exhaustion issue is correct i do take issue with lamar's busy contention that no remedy was available or made available the record does show that there were after the initial request for a hearing was made that there was discussions between m dot staff and the law regarding the legislation and that was a time consuming process you know they went to two different legislative sessions to address that about the legislation and whether or not it should be changed and that process took its coercion and then after that a large rather quickly decided to go to court with this issue here so do you agree with counsel's opposites view that what we're talking about here is a question of law what does the statute mean with respect to sign heighten what's grandfather and what's not i don't think that the question of the interpretation of that statute is before this court no i agree with you know that's that you may be on solid ground there but that was the question that's what were the underlying question that they may so their point is why why would it be more well wouldn't it be inappropriate for a ministry of body like the one here the m t c whoever is called why would it be more appropriate for that body to deal with a question that seems more suited to commission has oversight over how way operation construction and maintenance they control the issues of railroad crossings and other issues related dra statewide the responsibility for out your advertising was delegated to the commission by the legislature you know back after the highway beautification act was put into effect so there is that responsibility has been statutory statutorily delegated to the mississippi transportation commission the also about way of information the history department of transportation is regarded as the executive longer of the commission the department cannot act on its own without approval by the commission on its minutes of any actions that are taken but he you heard him he's not disputing individual sign modifications grandfather or not once the law is clear come to you but but sort of consistent with what i thought mt sees earlier position in this four years of procedural meyer was we entity in this world of ping pong where you the staff says one thing the commission isn't bound by that they have to go to the legislature then come back that's all part of the hawkins factors that would favor them not being thrown back into that world you you know and try to get the legislation changed and that was an understanding that lamar would undertake it and do it and hasn't the commission already indicated how they interpret the statute what do you get out of the hearing they have not as far as the height issue they have not ruled on that i thought that they'd already taken the position that the that's sentence before the one that sort of absolute all signs once modified have to be under forty feet but that was the position they take and that's a petition we certainly that we met put in our yes that is correct so it's in your brief it's the position of the commission so point out that is forward is the transportation commission hearing issues that are legal in nature they you know not retain the but several times during the year the commission meets twenty four dollars times a year typically twice a month and but they routinely hear a big protest by a contractor and those have legal implications  do and sometimes they rule in favor of the contractor and go ahead toward the project sometimes they say no you don't meet the criteria under the present set of circumstances but those are legal decisions as well and certainly have legal implications names thing true for railroad crossings or other things i'm just pointing out that the idea that they are not capable or equipped to handle decisions of this nature is is not consistent with the decision as far as i'm concerned that you know exhaustion does not apply because it's going to be a question of law again they make the same argument they did in their briefs and in the court below that this broad busy busy incompetent statute that a stab the transportation emission book isn't the authority to grant an appeal if they want to well they haven't it's been four years and they haven't wanted to but it's not it's it's just of argument of counsel it's not binding on page six of their brief there's a note there where they talked about this agreement to go to the legislature and it wasn't the more it was both parties said well let's go to the legislature and clear of those up they challenge that and say well that's not binding that was an invalid i think of the word they use an invalid act on behalf of the highway people because it was not spread on the minutes of the commission and the executive directors in signing thing well there's nothing spread on the minutes now and the executive director hasn't signed anything in this case so we're just having council saying well it's broad enough maybe they'll give you one of them are and maybe they won't agree with your honor's description of ping pong we been we've tried everything we can to get a reasoned decision here just interpret this statute let us go alone i think they're saying now it seems like except our interpretation but ask this for a variance and that's that's another factor in the w futility so we walk into the commission and these guys are representing them and we're making arguments on that but we've already decided we're just flailing away at windmills here this is not going to end good and then where we go we go back to judge pirro do we appeal that decision to judge roll or state court we've left with no remedy it's let's get this thing resolved i think judge as a jurisdiction it's a tough decision i understand his reluctance but  we want him to make a decision there was a reference to variance and i think your honor correctly pointed out well that's it you may grant him a variance from this ambiguous statute for this one son but this is not about one sign that one sign is in there because of the case or controversy for declaratory relief where the under state law or the federal declaratory relief that there has to be a case or controversy that sign was the application of that vague vague and i big essential to that one time was the case in controversy that's not the quick clear and unequivocal statement that this court required in the treasury case and says that has to be so clear that congress or listen to legislators dictating that you have to go to the agency for us that's not here nothing in that statute mentions appeals of any kind thank you thank you both the cases submitted on you the last case