this is p r involved two issues st the defendants challenge the district court's decision to abstain after finding that it has diversity jurisdiction in the plaintiffs graceland challenges the district court's decision that it has diversity in the st place and up when it's hot on both issues it but i want to say right at the outset that i think that this is a unique case where we have controlling the united states supreme court of the already won all the issues that this court needs to decide in terms of abstention birth were nothing like it in terms of whether the states the real party in interest missouri or away were exactly like the state is not the real party in interest and even if there is a procedural substitution down the line  commissioner the supreme court's case in freeport mapper and said that there is no destruction of the marketing but taking a step back here i think the nature of this lawsuit is actually germane to both issues of abstention and diversity and that is graceland brought this lawsuit under a louisiana statute that provides that a person in interest adversely affected by an alleged violation of louisiana's laws of conservation can file its own lawsuit if the commissioner fails to sue so grace means your notify the commissioner conservation alleged violations involving the historical exploration and production site and the commissioner sho further and she recommended not to abstain under her for going through a well reasoned analysis of each one of the factors that this court considers and whether or not assisting the district court h fell into error when it nevertheless remained in this case based upon birchard abstention what the supreme court has called an extraordinary and narrow exception to the duty of a district court to exercise jurisdiction over a case in which it has or sticks and but respectfully this case is nothing like burford burford involved in oil companies challenge to a drilling permit issued by the texas railroad commission burford was actually a suit against the state agency against the railroad commission and the company that it is a permit because of the agency's involvement there the supreme court held that abstention was warranted because texas had an intricate regulatory scheme regarding the conservation of oil and gas that made all orders of the railroad commission appealable to a specific district court that travis county district court and then to a specific appellate court which the supreme court said became working partners with the agency in developing specialized knowledge of the issues i want to ask you about that i mean there's certainly no specialized court so that last factor things where your side but there is some things similar about the cooperation between the who work whether it's state or federal in the agency because i'm looking at the statute section twenty nine dollars and part c which talks about if there is alternately a finding of liability it looks like the court is then supposed to work with a pattern of natural resources to develop a remediation plan then they're supposed actually be at the department holds a hearing where i guess people can comment on the remediation plan so you've got the who are working with this agency if there's liability established which to me does seem something more more attuned to what a state court should be doing than a federal court having this interaction with the state agency over working on a remediation plans i don't know what you if you want to comment on is that part see that to me gives the strongest further east on the five factors that this court considers in terms of whether this thing undergird actually weigh heavily against a stance and respectfully the district courts a one paragraph discussion of abuse of discretion it is a little tricky figuring out what the better role is in our case law if you have a situation i know you disagree but if you have a situation where say three of the five factors favor one side to favor the other side then what's the role of abuse it just does that were abuse of discretion would require some deference to how the district court balanced those competing factors that's the way i understand it your honor it is that say all of the state was going to get missouri would get compliance with its agencies or the relief of court said would be to those rate payers who would be paying less not exactly what we have here insofar as i substitution if and only if an injunction is assigned to the warranted at the end of the case supreme court in the freeport macaroons that rule twenty five substitution of a nod to birth carty does not destroy diversity is an equity claim only for injunction and it's an equity claim there can only be the only remedy that could be obtained in this case is an injunction where the state is a party who has the injunction judgment can only be granted for me jump to believe in the name of the state ok i understand i understand that i'm just trying to get the mechanics what happens if you win this case and an injunction is granted bunning from private claims in terms of the fact before that statute a party could obtain a judgment for a large judgment for damages and not use it to clean up property  property and so restrictive is used and so that the money that it gets has to be spent on remediation only to the extent to satisfy state regulations what happened in this case mentioned it in private log i have damage cases where the plaintive will last and the justices of the supreme court said look you do you are not without getting your property  or the federal courts should not be involved in sending precedents and giving making policy is specially polisher issues that does not as a federal court we would be deciding this undecided issue of louisiana law that's the thrust of the abstention argument at least the bottom line is that what you have here is that you have a person in interest who's actually making the commissioner's claim would make in court in the event an oil company did not follow its compliance or so we're acting like the commissioner that's one step she turns the matter over to komisar after we get a judge a clear on how to or not clear you are but i guess i'm not sure i mean we have an attorney general's bring action in federal court under state laws that class actions that can be removed under the class action fairness act and those policy issues one prescription the other is the weather and this is a really very important policy issue as to whether or not a suit could be filed by the commission order to enforce passed by elations of his regulations and that is an extremely him that would really got the commissioners ability to enforce the entire administration scheme well because if it's all about this one important unsettled question of state law there's a procedure we use all the time to certify the matter to a state supreme court but that i mean just the existence of an unsettled state question of state law could cannot support extension where we are we'd be point out that it's very important what is happening here is that we're actually acting as the commissioner because we're forcing regulations this is a regulatory action and therefore what we're doing  very intertwined with the administrative process the nazi case says you don't have to have an ongoing ministry to proceed here in order to applaud her for stanton as a matter of fact not she says you can h pointing out one fundamental it and that is what we have here is that the district court said there's no there is diversity jurisdiction and what it that the court really help us if you look at it the essence of it is that the only party who can get a judgment in this case is a party that is that is not a real party and troops basically the district court held the state is not a real party in interest and i can't think of one case of ever seen a writ where the party where a party an interest that would destroy diversity is the only party that that the only party that could obtain a judgement is not a real party in interest i think undoubtedly the state is a real party in interest and because the state is a real part in interest up there is no jurisdiction in this court now i understand very well the there are or five other cases in district courts where the district courts have said the state is not a real party well they base that ruling on the assumption that that the grace ranch and the plaintiffs in those cases can obtain a judgment and their own name and then after they obtain the judgment then to then the commissioner is substituted for the plane but that is not what the statute says the statute since basically that the of the commissioner and more importantly the the judgment is to be treated as if the commissioner were a the party all along disregarding altogether the person so the state is the only real party in interest in this case and if the state is the only real party in interest then there's no diversity jurisdiction now as beck are pointed out in becomes a party to the case because his name the judgment is entered his name but that's not what the jurors diversity jurisdictions determine is a term and on who is the real party in interest on the da below and the real party in interest of the data removal was the state and the real party in interest now is the state basically we have to look at and i think the case law points this out that you have to look at what the substance is of the claim under state law and under state law this is solely a state law quoted and under state law you have it probably party in this case under thirty call it sixteen alleging the commissioners claim so the essential nature essential nature of this claim is that it's a claim for jump to early by the commissioner in the temporal order of what the court does there will never be a judgment in the name of grace ranch in this case there cannot be a judgment in the name of grace ranch in this case and therefore  there's no jurisdiction in terms of in terms of whether or not excuse me just in terms of whether or not have to have a centralized court and this all stems from the supreme court's really up rule in question bush where the supreme court there seemed to broaden the types of cases in which federal courts are allowed violations or is overriding legal issue of if today the louisiana supreme court issues an opinion resolving once and for all that question would you still be arguing that in these cases federal courts need to abstain i i will say this and address it this way judge drill said in his decisions and both cases district court in the western district that for now because you have all these undecided issues and abstention may not be proper a year from now or two years from now and i know it's there ok what i'll follow up question is what's the difference then if us a court a federal court were to just certify the question to the extraordinary thing to do but you get the answer that at that you think is is so important and that and that is what that is what gets me back to the issue of discretion  certainly from what kleck quackenbush seems to indicate this is a federal courts him discretion not to hear cases and they have and it doesn't necessarily have to be in extraordinary circumstances it just depends on the louisiana there's an issue of prescription because louisiana statute says that where this where the legislature does not specifically robot it prescriptive period there's no prescription and the oil companies are challenging that up unfortunately what we have in this particular situation is a statute that is basically been lame dormant for years but is now being used and there's a whole host of issues that are that are undecided and i think what judge dredd was referring to was until there is still there is a subtle state policy and all of these issues are interrelated the federal courts o not to be implicating themselves in this matter and i again i emphasize this is an equity case and quackenbush says this court has just discretion in equity cases not to accept jurisdiction at best as to whether whether or not that issue may be raised in that case and in those other cases gilberto and serrano that were ultimately remanded based upon a stance and there was no there was no appeal which would have provided this court the opportunity if it shows to do so to certify to the louisiana supreme court and to let me ask what i when i asked you the question about the proposed liability finding procedures you know you seem to acknowledge that could happen but then you cite a judge dances opinions as that doesn't create the kind of court agency partnership that would warrant abstention which understood your argument the other side when i asked that said those procedures have nothing to do with this if but if they don't that's their position that they don't apply here then the concerns that your honor is that the outset didn't don't even come into play because you would never have the that procedural overlay here i assume that they pled out that that that  procedure applies because that statute provides for attorney fees and grace rance is asking for attorneys these under that under that statute not not the commissioner grace range is asking for attorneys these are under under th that procedure just as well as a as a stick or one and i want to again be clear that that procedure would only come into play at the very tail end of the litigation after grace rance would have prosecuted this claim all the way through trial the commissioner would never be a part of this case in if and only if and that was a big deal that he prevailed on the merits then that person if that procedure flies here then the federal court could could apply b p or b h p if it didn't prevail on the merits meaning that the state that the commissioner would never become a party to this case but again even if the commissioner were to become a party at the end of this case after gr it's an injunction on on the merits the supreme court in freeport said that that does not destroy diversity and in the freeport case there was a rule twenty five substitution of a non diverse that's ok we have a will twenty five substitution didn't destroy diversity unless the court has any further questions and i will see the rest of my phone all right thanks to both sides for the argument th