the problem with respondents argue is that that choice would have existed before the jurisdictional determination was issued. it would've existed if the corps had never adopted its practice. it simply a choice that is posed by the clean water act. >> if they were a provision of law saying that a jurisdictional determination by the corps or by the epa is binding on the federal government and future litigation, would that be reveal? >> i think that the statute said that we would have a very different case. because in that case we would have something much closer to bennett versus beer. in bennett versus beer the court was dealing with the biological opinion issued by one federal agency, the fish and wildlife service to another federal agency, the bureau of reclamation. it includes an incidental statement the terms and conditions found in single

statement affected the legal options were available to the bureau of reclamation. >> it would be a different case but are you able to say that would be reveal? >> yes. if the determination were legally binding upon the epa, if it were closed the possibility of enforcement could be the enforcement action that was inconsistent with the terms of the jurisdictional determination, yes, we think that the jd would be judicial repeal the. i think it's important to point out how far removed that is fun actual statute before us. >> let me ask about how far removed it is. there is no such statute, that certainly is true but there is a memorandum of understanding between the army and the epa, and it says quote a specific determinations -- that i think that includes jurisdictional determination -- made pursuant to the terms of the memoranda of

understanding will be bond on the government and represent the government's position and any subsequent federal action or litigation regarding the case. would your argument be that because this is a memorandum of understanding as opposed to a statute or a regulation, the situation is different, and that is insufficient to make the jurisdictional determination week you'll? >> that would be one argument, but the other argument, and i think we've made this point in the brig, that particular memorandum of understanding with the with what are referred to as special case determinations. they are situations occasionally arise where the agencies perceive at the outset that there could be dicey questions. deputy questions of coverage on which the corps and epa might disagree. since speed is i'm sorry to stop you right there but i don't think that's right. i'm looking at the number and as well and it says section to --

sorry, 4 (c) (ii), it describes not special cases to its is for those projects not involving the special case, the dp, the district engineer, the army corps, not epa, the dea should make final determinations to mitigate the determinations without a requirement for prior consultation with epa. while it talks about the division of authority between special cases and other case it says something about not special cases. >> but we understand the language about the ultimate determination being 90 on the competence of the litigation as referring to special case determinations. >> i don't see anything do that. i'm looking at six. it says all final determinations must be in writing and signed by either the d.a. am i the army corps person, or the regional administrator, the epa person.

and it says those will be binding on the government and represent the government's position in any subsequent federal action or litigation concerning that final determination to it is referring to all final determinations by either the army corps of engineers or epa. >> i take it were looking at the in 1989 memorandum of agreement? >> yeah, the one you cite in footnote three of the reply brief, would you say that it does not address mine run core jurisdictional determinations. spit i think would still think of the general, final determinations as referring to special case determination but even if the memorandum -- >> just applause. how can you do that when this is all final determinations signed either by the district engineer who does not have authority over special cases, or the regional administrator? how can you read that as applying only to the special case determinations?

>> it is the same final determinations to the de or ra made pursuant to this moa which is referring, and immolated referring specifically to special case determinations. >> yes, this moa decides what to special case and what's not. it tells you what happens when it's not that i don't see how you can say that talks only about special cases. >> even if the memorandum is read that way, if the memorandum as read that what i don't think it reflects current government policy. it does reflect the current understanding of the corps and epa. >> give me an example of a case where the government has gone after someone, absent changed circumstances, who's had a negative jd in hand, any situation past, pre-memorandum, post-memorandum. where you've actually taken the

army corps is determination and said, we're going to go after this person anyway. >> i don't know that it's ever happened and assorted to want to suggest -- >> the fact that you're reserving her power is enough, even though by this memo and practice you've never done it? you think that that's not within bennett's second prong. >> it's not within bennett's second prong in the same way at in franklin versus massachusetts the practice of the present had always been to transmit the features in accordance with the features that were prepared by the second of commerce. but the court said what mattered was there was no legally binding obligation on the president to do that. i would also say that independent of the possibility of epa enforcement action that is a more realistic possibility of a private citizen suit. the fact that the corps concludes that jurisdictional waters are not present would not preclude a citizen suit from a

file challenging the premise of the discharge activity -- >> the question is i think whether it's final with respect to the corps determination. that with respect to whether somebody else might be able to bring a suit. and i think what justice sotomayor is suggesting is that in practice and what i was suggesting, in lot is its final with respect to the corps. >> that would be the first prong of been a. even with respect to the corps is still subject to examination in summary presents new information, if in the corps' of a permitting process the applicant asks the court to reconsider its prior jurisdictional determination, the corps is not going to reconsider it sua sponte during the five year. but remains in effect. >> it seems you are arguing is that there are exceptions to what is otherwise a safe harbor. >> the jurisdictional

determination we talk about here was one to conclude that jurisdictional waters were present. it's clear that sort of jurisdictional determination has a binding effect on anyone. the land owners to legally free to disagree and to discharge the -- >> a great practical risk. i mean, the corps consider says these are jurisdictional waters. you say you can go ahead. you can still don't and do whatever you want and take a chance is that the would be a difficult later on down the road. >> i agree that it is a legally available alternative but i agree a practically difficult one. the other alternative the property owner has is to seek a permit to discharge feel awfully. the permitting process, that love is the mechanism that congress designed to allow people to get an advanced ruling on the legality of their discharges without -- >> it's a very arduous and very expensive, so for a landowner

who thinks i shouldn't be under this clean water act at all, and now they have to go through this whole process, it's going to take years and cost me a lot of money. >> and i think our legal system confronts that type of problem and that type of trade off in a lot of different context. for example, that was exactly the argument that standard oil made in ftc versus standard oil. the ftc had commenced an administrative proceeding in which standard oil was charged with violating the law and there was up with the phrase was reason to believe that there is a statutory threshold that the ftc had to surmount before administered proceedings could be an issue. standard oil's complaint was i should have the challenge of the initiation of the proceedings because it will be to great expense to defend against them. it will impugn my reputation. >> sometimes it doesn't.

but i joined bennett and the reason i joined it as it says in the second prong, or from which legal consequences flow. i would assume that nothing in bennett, or i would have dissented, is intended to overrule what i think is a great case on the matter, which is abbott labs. and harlan come in abbott labs, explains completely and thoroughly what this court has done in frozen food express, with the court did. the point are now making, what he says pacific is the icc order is right for review. even though it would have no effect until later. someone decided to bring a particular action. he says that in storer, the commission, policy determination is right, even though it would not issue a television license, that's what th the policies that can't be that no specific

application was before the court. it wouldn't take effect until later. in the same thing as true precisely of the order in abbott labs itself. it was a statement of interpreting what the commission would do, and nothing was going to happen. nothing happened in less later on somebody decided to violate it. much like this. and if they violated it, nothing would happen, and less of the commission decided to prosecute. so what justice ginsburg said was, once this is in effect, okay, now what happens? the person who is subject to it has to take certain steps because of the law. spend $150,000 to try to get an exception, or do nothing, violate it and possibly go to prison. does sound like important legal

consequences that flow from in order that, in respect to the agency, is final, for it has nothing left to do about that interpretation. and is perfectly suited for review in the courts. so we have harm flowing from a change in legal relations. we have an agency that has nothing left to do on this particular matter, and we have the court that is perfectly suited to review it. i would say it flows from abbott labs, almost qed. so what is your response to that? >> with respect to abbott labs specifically, excuse me, abbott labs held with a regulation that essentially required that on each instance where the trade name of the drug appeared, including it on the labeling, a generic name of the drug had to appear as well. the regulation, as rules typically do, was phrased as a

directive. it said manufacturers shall do this. it was a legal demand. in standard oil the court dealt with, said in fairies context, we have held -- very this context. regulations on review go as final agency action although the court engages in a separate ripeness of discussion to a second thing i would say about bennett, then the court was quite careful not to rest its decision on the practical impact of the order would have on the receiving. it rested its decision on the fact that the biological opinion constrains the legal obligation, options available to the bureau of reclamation because only by complying with transport terms and conditions for the bureau of reclamation get the energy from endangered species act liability that at one. the third thing i would say to return to my prior point about standard oil, it happens a lot

in the law that we are confronted with a situation like this where a particular government decision is made can be an agency order, additional court order that denies a motion to dismiss for lack of subject matter jurisdiction or for failure to state a claim on the merits. and the losing party, the person who disagrees with the order says i should be able to get immediate review of this because if i don't get immediate review, and even though if i'm vindicated at the end of the day i we point to substantial burden and expense in the meantime. >> mr. stewart, the ascii, is don't panic by asking this question. and please don't resist because i know all of you arguments resisting it. but assuming we disagreed with you that they should be appealable, which then there is way to write this that the government would like? >> if the court ruled against us on the ground that it understood the epa and the corps to have

entered into a binding agreement, such that the epa would be foreclosed from taking action based on its disagreement with the corps' jurisdictional determination can i think of that whether a pain and it would be one that if the agencies wanted to fix it, they easily could simply by issuing a new moa clarifying their view of the jd's defect. >> on the same lines, can i ask what generally, one of the reason i find this case for typical is because all over the federal government to our complaints offices of various kinds whose function is to give advice to people. often that advice comes with very specific recommendations. it says we will not take enforcement action if, or, we do not consider it a violation of law on the following facts.

i guess what i want to know is your view of how this program compares to various other kinds of programs like this, with its tax opinion letters, or acc opinion letters or fcc or whatever, how this program compares to those and where you could draw sensible lines. because most of we want government agencies to do these things. we think this helps people to actually know what the government thinks about particular factual situations. so how do we draw lines in this case? >> i guess the difficult ahead with your question is, or i should say i think if you were drawing lines, the jurisdictional determination at issue here would be fairly far removed from anything that ought to be judicially review both are in many other instances the informal advice that agencies

are giving, it is specifically advised about the perceived legality or illegality of specific contemplated private conduct. somebody to come to the agency and say i'm thinking about doing x., would that be legal or illegal? the agency might say we think that that would be one or the other. the likelihood that an agency would say to somebody that's legal and subsequent to pursue an enforcement action -- >> i think underline justice kagan's question is that the clean water act is unique in both being quite vague in its reach, arguably unconstitutionally vague, and certain harsh in the civil and criminal sanctions it puts into practice. what's the closest analogous statute that gives the affected party so little guidance at the front end? >> i think with respect to the vast majority of sites in this

country, it's readily apparent width of the clean water act applies. and this point is somewhat removed from the actual facts of this case, but it happens all the time that at construction sites around the country, intellectual parties will dig up a lot of dirt and deposited somewhere else, and to do something that would be illegal if it occurred and waters of the united states. nobody thinks there's a problem because in the vast bulk of locations, there really isn't a quandary. if you imagine a statute that sit before you can do anything like that, you have to come to the corps and get advanced a shirt that these are not waters of the united states and it would be exponentially more burdensome. i take your points are shortly significant range of tracks was the application of the act is authentically ambiguous. the thing i would say about that is congress has designed the permitting process. there are other statutes in which regulated parties have a

statutory mechanism for getting an advance ruling as to the legality of their conduct. they have to either do it and take their chances or forgo it or perhaps seek informal advice from the agency. >> let's say in a case with hasn't been a standalone jurisdictional determination and the land owner apply for a permit. first part of the permitting process as i understand would be a jurisdictional determination, right? >> that's correct. >> and at the end of that can the land owner the judicial review if the determination is that, it is subject to the clean water act, or does the land owner have to go forward with all the rest of the permitting process before there is a possibility of an administrative appeal and judicial review? >> it would still have to go through the rest of the permitting process. part of the point for that is maybe that during the rest of the permitting process the land owner will have no prospect except perhaps of an

administrative appeal of persuading the court to re-examine this jurisdictional determination. >> why isn't that permitting process and legal consequence under the second prong of bennett? >> it's not a legal consequence because of the land owner always has the legal option of discharging without a permit if it feels that -- >> then he goes to jail. i mean, you put in your brief the risks it. in your brief, and i think the point raise, it's a good idea to give people advice. abbott labs takes care of that. one of the two important features of abbott labs is you look at it from the point of view of the agency. you say how formal visit? what was there left to be done? we have a whole set, a whole part of the cfr which is devoted to this. which goes, it's called jurisdictional determination from instructional guidebook. the army corps of engineers is broadening.

once and make a determination, it's called the agency's official view. it stated it remains in effect for five years unless in this inch change. you say and approve the jurisdictional determination marks the culmination of a distinct process by which the corps and forms and land on whether the corps believe that covered waters are present. that doesn't sound like someone giving informal advice, and there's an appeal process. it sounds like a formal system of answered a question, which question is, are these lands wetlands, federal or not? if you get some kind of informal advice, find. you would come to a different result. i just listed the things here that suggest it isn't all formal. it's a five year formal definite procedurally guided cfr determination. >> i would agree that the process that culminates in the approved jurisdictional determination is much more formal and elaborate than the

process that would usually culminate in the kind of advice letters that justice kagan is talking about. >> is that so we have the other part of the problem. >> i don't think the format of the process really has much to do with the bases on, a practical basis on which respondent wants to get into court. that is, it that is, if this had been a much less formal document but it still manifested that corps' view, i think respond was said to be under the -- >> it isn't just the pressure. >> is both. the concern is on the other side. this vast federal government can operate, to issue many, many formal determinations on aspects of the statute. and if people are required to follow those, without court review, on penalty of going to jail if they don't just follow it, or are paying hundreds of

thousands of dollars, what happens to judicial review max that i think this also a public policy question. >> i agree that it's a public policy question, but as i was saying about standard oil and the same principle applies to our legal systems of general resistance to enter laboratory appeals within the judicial system. that is, it happens all the time that a motion to dismiss is denied. the party who thinks that the complaint ought to be dismissed could say to an appellate court, i will have to pay hundreds of thousands of dollars litigating this case to its conclusion before i can achieve -- >> at least there's an opportunity to certify the question to say its interlock or tory, but there's a good reason why it should go up immediately. so there's nothing like 1292 b. here. >> that is the permitting

process. it is an alternative mechanism to get at -- >> jurisdictional determination. first can you explain to me why under the clean water act is done this way? we will give you advice but it's not by me. this is a deliberate attempt to make this determination formal and binding on the agency. it's a final adjudication of our position on the jurisdictional question. >> i think it is formal and the core -- the corps doesn't revisit it because it would seem like a waste of time unless we have presented -- >> why was it done this way, to make it is formal adjudication rather than we will give you advise? >> i don't know why the firm held including the administrative appeal was

provided. i think was intended as a service to the land owners that the corps wanted to give the best advice. >> was there anything in it for the epa or the corps? i understand want to inform the public of the agency's position. but is it all out tourism or was there a reason that the epa or the court wanted it done this way? >> insert has benefits to the enforcement agency in the sense that if land owners received what the corps believes to be accurate information about their property, the likelihood of their complying will be greater. as justice kennedy i believe is pointed out, the preparation of a jurisdictional determination would be the first step in the permitting process if -- >> mr. stewart, in regular litigation, that is an inducement potentially for one or other party to appeal to

delay the resolution of the case. in this situation i don't see that inducement as existing, meaning i doubt very much that land owners who wanted to use their property for a particular purpose are going to appeal just to delay the governments adjudication of an issue that's going to get a permit them or not permit them to go forward. >> i would agree it is less danger of manipulative appeals. there is still a real danger of duplicative appeals because you could have an appeal on the jurisdictional question. the court says the courts of jurisdictional determination was not arbitrary and capricious. now you go to the permitting process and there's a separate suit about whether the terms and conditions were -- if i may i would like to reserve the balance of my time. >> go ahead. >> thank you, counsel. mr. hopper.

>> thank you, mr. chief justice, and may please the court. we read the moa to be binding in every way. we have found not a single word -- >> that doesn't help you for very long. because he just said they will change. was about the argument you want to rely on? >> i'm sorry? >> he just said before that if we will that way, they could just change it. they would just eliminate the moa. >> its existing today. and in addition to the moa, the fact that this is a site-specific adjudication suggests that this isn't binding -- that this is a binding determination. in fact that the very purpose of an adjudication. also as has already been mentioned, it represents itself as being the official view of the agency, a final agency action of the agency, and will be relied on for five years.

even drink the permitting process, that will not be revisited. all of those things suggest that this is a binding adjudication and -- >> mr. hopper, and ask, you know, i was just looking through some of the agency's rules and practices. i'll just give a couple of examples. the fcc put out rules just this past year with respect to some particular matters, the fcc rules say, the bureau will not bring an enforcement action against a requesting party, a requesting party meaning somebody who requested an opinion, with respect to any action taken in good faith reliance upon an advisory opinion in all of the relevant facts were fully, completely, and accurately presented to the bureau. there's another that i just came across. it's been just a standard sec opinion letter.

it says based on the facts presented, the division will not recommend enforcement action to the commission. i guess my question is, this appears to map all over the place around the federal government, people setting up offices whose specific purpose is to say come to us, tell us your problem and we're going to give you a few, and not just a few. we're going to essentially commit that if you told us the truth, here is your answer, you can take it to the bank. i guess i want to know what's different about this than any of the other cases in which the federal government does that. for good reason. because people want to know these things. >> what you're describing, your honor, is what would be referred to in this case as a preliminary jurisdictional determination. the regulatory process has built into it the option of an

advisory, informational, preliminary jurisdictional determination to be issued to the applicant that is nothing more than advisory. .. we will not bring an enforcement action. just as you say, as it basically says to us we are in the clear if we pass this. so do these letters. >> that is strong, your honor but not as strong as the determination where the rights and obligations are actually decided. in this particular case, the process is so formalized and purports to be final and binding

that it's quite distinguishable from the situation you were describing. >> let me ask about that because certainly this process does last a long time and it's even mr. stewart would say this is a more formal process than many that exist around the federal government. and i guess i'm wondering about the incentives of the kind of distinction that you would make because that would suggest that agencies should drawback and not gegive a fully informed of you d not do the fact-finding that the board does here. so to make the process more formal but in making the process formal also less accurate and helpful and i guess i wonder who

that benefits in the end of. >> end. >> i think that the agency has more to lose than the land owner has to gain by refraining from these kind of formal ad adjudications. most of the nationwide permits in about 3100 individual permits of those only eight have ever been appealed administratively so there is no incentive for the government here to drawback of the formal process because in almost all cases the landowner is going to defer to the agency on jurisdiction. that would be my response to you.

>> i guess i don't quite understand that. it seems that they could make it less formal and provide less assurance and still, there would be very few people who would want to run the gauntlet so you wouldn't gain anything all you would do is lose something like accurate reliable information provided to people about whether intact the borders are within the clean water act. >> that's the problem because until there has been -- because the clean water act is so difficult -- under the clean water because it is difficult to determine the act and it can only be done through the expert analysis you would never get the kind of detailed reliable information that would define the scope of the jurisdiction if you didn't have such a formal

process that would occur in the type of generalized ruling that you suggested like the preliminary. it says we think you may have the united states on your property. the approved jurisdictional date says the opposite. we made a definitive determination you can rely on that. you are obligated to get a permit and you have the right to use property that is not subject. >> in the brief, what is the cost to get into the determination and a case such as yours and can be agency adopts the sort of rule that you want to be declined as jurisdictional determinations?

>> to receive the determination under the regulatory guideline is to ask. and under the regulatory guideline, the agency is required and should respond. the court will give a formal approved jurisdiction determination if one is requested even if they don't request it in that specific language. in the court proceedings for the jurisdictional question you might think it was very wrong and you are stuck there and have to go through a lengthy trial and that's too bad. it is a complete and adjudication and even so, you

don't get any kind of an appellate review until there is a final judgment in the case why should this be any different? >> you are urging that you should able to challenge the court this jurisdictional determination. >> in his judicial review. >> and if you were in a different court would have no immediate right to charge the jurisdictional determination. that's the whole question at issue. >> if you were in the district court and the district court made a jurisdictional determination you are in our

power and you disagree and think the case should be allowed to be free to do what you will but you lost the jurisdictional issue. the equivalent would be going through the permitting process carried >> we don't know why we wouldn't be able to appeal that. but he request on the judgment we could appeal it. >> at the would have t you woule judgment on the whole case. you can't appeal the ruling on the jurisdiction. of the jurisdiction. you want to get out of the case. >> we don't believe that we need to go through the permit proce process. >> i think if i understand the question you go into the district court and say we are from alaska and here we are in florida and we don't belong here. there's no jurisdictiothere is e court says you're wrong.

that means you have to stay there and you have to go through the whole proceeding and it's going to cost $1 million it's going to take a long time, but you don't get independent review of the question. so i think the question is, if i may say, is why doesn't apply here, too mac because that is like one part of the whole thing. >> eit will happen until they decide they are not going to give you a permit which is part of it. under the lab to quickly do the determination if one is in a catch-22 situation, there is a no-win situation where even

though action results in great loss because your option is to only abandon the project at great loss or go for a permit at great cost or subject yourself to an enforcement action that that type of hostage choice is sufficient to get the review. >> do you see a distinction between the jurisdictional determination by an article three district court judge and jurisdictional determination by the enforcement agency? do you think there might be an argument that it is tolerable to wait until the end of the case where a neutral judge makes the adverse jurisdictional determination that perhaps was appealing and when the jurisdictional determination is

made by the enforcement agency? >> it's already been made. there is no further and adjudication to be made unless you're talking about requiring a permit prior to the judicial review. and that's what we find objectionable in the court. >> there is no doubt that some people face themselves in predicaments when they are looking at trying to figure out what to do under the clean water act. but of course that is true with respect to many regulatory statutes and i think the point is that the predicament is the same regardless of the process. if the process didn't exist, your clients would be facing the same predicament and indeed, the

reason is that it's supposed to help people in dealing with this predicament because it is supposed to provide them with information that they wouldn't otherwise have. that seems to be a good reason to prevail in this case. it is a predicament that comes from the clean water act. the process is the only thing that it's supposed to do is to give you more information so you can make the choices the statute puts to you. >> it does more than that. the second problem in the finality is satisfying if any of the three requirements are met. the one as determined in the legal consequences. in obligation has been

established. it might be obliged to get a permit. it's informatioinformation aboud happen. the clean water act doesn't say anything about this particular property. a trigger the requirement for the permit for this sightseeing. it's why they go about what they can and cannot do with respect to securities.

having a process that results in the final agency action. it can practice they constitute and binding conclusion. this is a lot of work for them. that's why they've set up this process. i understand what you were saying earlier to suggest that isn't how you see the process. it expands their enforcement power. they ask for the determination so if that awards the court to the fact that this might be subject to the jurisdiction.

it's in the jurisdiction as it practical matter for most instances and in a project thas shut down. >> further than that when the congress passed the clean water act is prohibited the navigable waters. the issue i think. there is a statute that was passed in 1946 that called the administrative procedures act.

it accomplishes the same result just telling everybody what the agency will do in such circumstances. it is up to things being equal and final in the agency action with respect to that matter. it might be that the latter is not. so i think what you're telling me is that what i should do next is go read the federal rules and regulations and to see is this more like informal advice or is it more like formal rulemaking that you have and they have the former like yes i don't know and i go and pick up my mind i guess that is my job in this instance. >> we would refer you to frozen foods. >> they are examples of what falls on the final side of the

line. it would be on the other side of the line. >> if it is virtually indistinguishable from this case it was essentially a determination case. >> would this count as a formal and adjudication? the >> the agency applied the law to ththe specifics of the facts and have a formal hearing. would i it then receive deferen? stomach .in the instance, no. >> i couldn't think so and i wouldn't think that it would receive deference. it is a very fine opinion by the judge on this question and he basically says the kinds of things that are not final, the kind of advisory type of rulings that are not final are the ones

where there is no deference given that that is the proper line to draw. that's when you know that there is a kind of formality to it fit should count with respect to the question of the final miss. >> we have that in every way the finality standards of the second. they talk abouwe talk about thel consequences flowing all of those come any one of those. >> what would be the best example of the legal effect that follows the jurisdictional determination as opposed to the practical effect? spigot is the increased risk because of the very existence

constitutes prima facie evidence of the violation if on a violato discharge without a permit. >> that sounds to me practical not legal. >> i would also suggest as the court recognizes that this jurisdictional determination increases the risk of the civil and criminal liability. >> is a dirt -- determination? >> when duckworth is looking att the agency and civil penalties, the clean water act requires a court look at the good faith efforts and by extension the bad faith efforts and now that we have a formal determination, there is a knowing violation that brings in the potential

sanctions against the landowne landowners. the. i had an opinion letter and i did that. that happens all over the place in the litigation with respect to every single compliance piece of compliance request that the government is. to give a final determination as to the jurisdiction after having gone through the formal appeals process so the wait is quite wee

different and let me also make a comparison between this and when the court considered whether the double penalties would apply in that case you might recall in the argument he said with respect to the double penalties, that is there will be $37,500 a day assessed because of the violation of the statute and $37,500 a day because of the violation of the compliance to save the reading of the law is entirely theoretical and didn't know if it would even fly. here we don't have a theoretical risk. we have an actual risk. the clean water act says in the knowing violation shall result in the civil sign of no less

than $5,000 or more than $50,000 a day and will increase the prison time from one to three years. so even though you're right a simple letter may put one on notice that certainly doesn't have the same weight as the final binding determination. the main problem in the requirement of going through the permit process before one can seek a review under the apa are full fold. it is in the jurisdictional question. it doesn't add any facts that are relevant or qualify the law. it is an act but secondly it

puts the timing of the judicial review in the hands of the agency. it is an open-ended invitation to the agency to delay forever the final permit issuance denying the land owner the right to ever have a judicial review that was important to this court when the court was looking at whether an enforcement action would be appropriate in this court said it wasn't because even though the land owner may be able to commit a violation that has no control over when the enforcement action would follow. so there is no control in the land owner as to when the judicial review would occur and

we think that it is of the apa that suggests the review required the polls under the presumption of the review building. that is the intent of the congress. once the finality has been established it seems to me the court should be looking at ways to precipitate for the judicial review and find ways not to detour or delay. >> for the argument to apply to the agency do we have to get into this in the first place there is no statute that requires us to hold the jurisdiction to make the determination. your plan is exposed to the same things under the statute. so it is at least some benefits

to the publicly served and becomes subject to the immediate review where if you have done nothing all you have is the statute. this is a 12 b. motion that serbs in the complaint as correct and the complaint suggests the determination never should have been issued that the waters in this particular property are not the waters of the united states into the negative jurisdictional determination should have been issued. it doesn't follow through from the statute under the statute we

should be exempt under the jurisdictional determination to get a permit. >> i thought your answer might focus on the fact it is a great benefit to the agency because by issuing the determinations they are able to exercise efforts without going through the formal enforcement process, so it does give them a way to exercise their authority without the effective judicial review and that is a significant tool for them so they might be unwilling to give it up if they have the e option. >> there is no question they have nothing to lose. in almost all cases the recipient of the determination for the first of the judgment and i wouldn't even say the mitigation from the individual

they could never do if they could establish the judicial review. there's the waters on the site so i agree with you i think that is one of the problems. it's not that the cost is definitive, but if the cost is prohibitive, then it raises a problem because you can't -- it raises the potential due process and i think it raises another problem of practicality. >> how much is too much? >> for some people in the financial situation 3,000 is too much and for others, i don't know your client's financial wherewithal that, 10,000 would be reasonable.

so when do we decide how much is too much? >> i don't think that it's a question that needs to be answered generally as it can be answered specifically in this case. in this particular case, the land owner has been asked to provide over $100,000 in additional studies and you might recall that the applicant actually started the permit process and was willing to go through the permit process until it became unreasonable and cost prohibitive and that's when they ask for the jurisdictional determination. >> first with respect to the cost of the permitting process there is no basis for assuming that the process is

systematically unavailable as he was referring to. in the authorizations with a little over 3,000 individual permits are granted each year but the process may be extensive in the individual cases, but it is a process that is regularly invoked successfully and in many instances if the landowner come to an agreement, the court offers to prove it the activities on the terms and conditions that is regarded as acceptable that may obviate the need to ever resolve the question. that is as a justification or not in the interrogatory review. if the person seeks the immediate review they may turn out to not resolve after all. i think the court has already taken the step of saying the

same principle applies to the administrative adjudication. it's simply not an administrative law but a fundamental precept of the system that on the whole we are more worried about the piecemeal litigation and property for litigation. in the agency process that were intensely formal and structured and not to have an effect on the decision-making they are not the final agency action because they were not legally binding and the same thing is true with respect to finding effective the jurisdictional determination on the recipient. >> thank you counsel. the case is submitted.

this is a story about the presidential power and influence during the time of war and it puts before the court essential themes of the conditions that can do things that may not be expressly stated in the constitution. and the limits of the congress and the courts placed on it. >> he said as he did in the opening the case has come to be accepted by the culture. >> it was a sweeping decision that isolated the u.s. as one of only four nations of 195 across the globe yet it hasn't settled the issue. we will look at the case that is significantly in the presidential executive powers stating that it was unconstitutional for the president to seize control during the korean war because it wasn't authorized by congress.

watch the landmark case is tonight at ten eastern on c-span and c-span.org. >> vr line this afternoon for a discussion on the labor market in the digital economy. the american enterprise institute and center for progress were cohosting this discussion and speakers include perdue university president mitch daniels, and the foundation ceo zoe baird. this should get underway in just a moment.

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good afternoon ladies and gentlemen open to the american enterprise institute. i'm the president of aei and i'm delighted to welcome all of you to the discussion entitled a labor market for the digital age. i'm honored to welcome the president of the senate for american progress cosponsoring this event and we are honored to welcome mitch daniels, governor taken over and walter isaacson of the aspen institute. i know we have determined this conversation in store for us today and the issues we are wrestling with. i want to start by giving you a few remarks on why the subject of finding new solutions to the

problems of unemployment and getting people ready for the skills they need in the next century is so important to us here. aei is a think tank dedicated to two things, human dignity and human potential. and we believe that our commitment to truth requires the competition of ideas to function well in a free society. there is a lot of americans disagree on these days but one thing that brings us all together, the real consensus behind the american experiment is we have to push opportunities to people at the periphery to the people who needed them most. need it the most. so what are we missing is making this so hard right now? if this were a question of the government money we could have solved it. our panel today is going to talk about what we really need. we thought about this a great deal in the works that we have

done and there's a couple of philosophical points worth making just in passing. there was relatively recently about five years ago i was listening to a speech by a cardinal by the name of francis george was the cardinal of chicago and one of the great intellectuals who passed away relatively recently i was listening intently because he was getting a fund-raising speech and he was known as a prestigious fundraiser and this is something of the emotional importance to me. he was talking to the donors of the poverty programs that were giving to his poverty programs and he made the following statement he said the poor need you to pull them out of poverty and you need the poor to keep you out of hell. and i thought to myself i'm not going to use that.

but it did raise an interesting issue for me to what extent do we need the poor and people that have been marginalized i know that it's pretty easy for everybody in this room to say we tolerate people that are different than we are and it's easy to say we want to help those people but to what extent do we need those people? the answer is why i'm so excited about the panel. this is how we can need people more, how we can make people more necessary and superfluous to our own growth and prosperity and how we can stop treating people as liabilities to manage and how we can treat for people as those that have value with their lives and tell you to creatvalue to createin the live. that's the goal today with this wonderful distinguished panel.

before he turned over to the panel and the moderator i first want to welcome my friend and colleague in the think tank world the president of the progress. [applause] >> i'm honored to be here and that the center for american progress is part of this event today. i really want to thank arthur for his innovative ideas. i particularly appreciate his focus on human dignity and opportunity and on addressing poverty. we don't always agree on solutions, that i in a time when there is so much shouting in the world we very much appreciate the constitution of ideas that we have a whole host of issues and also to be here with zoe

baird and the work the foundation has done in this arena is a critical contribution to addressing so many of the challenges that we have in the country. there is no putting aside the fact the country is struggling with a lot of important issues about how to ensure that prosperity is there for everybody for the margins and for the middle not just those at the top and that is the politics on all sides of the debate. so it is fantastic but the foundation has been able to bring together a bipartisan group of leaders in this arena and proving even in an election year we can have a focus on these challenges. it's obviously no hidden issue that globalization and technology are driving a lot of

challenges we are facing. people deserve -- do what we deserve stagnant and the job engine in the united states is growing and building but the wages in the middle class that it can produce are things that many people not just at the margins but many people have fundamental questions about. these kind of challenges offered an opportunity though and it's hard trying to address these challenges. i'm honored to be here with governors at the forefront thinking through the challenges in the state. that's why the innovations are not using technology to solve the challenges is so critical. we have been working on issues like the apprenticeships and about issues around ensuring that the jobs of today are providing wages in the middle

class for people. it focuses on the innovation and technology to ensure matching jobs for everyone. it is an important debate to have and the fact we actually are providing solutions. i'm honored to be part of this and i'm excited for the panel. >> thank you. there are two people that have elevated the dialogue in this town not just by coming at it with values and ideas that innovative solutions abutinnovao

it's great to be working. that is true of the foundation and of the two panelists in this year with shouting and somewhat of a place in partisanship the governor is on the panel and represents the politics getting things done for people. you know their biographies but quickly the ceo of the foundation she also leads the network america and you just got appointed a few days ago. the department's digital committee i will say that is probably a longer name. but it's for the market base platform. and through purdue university

he's one of the great leaders recognized not only by the fortune magazine but his two successful terms as the governor of indiana and he's also taking purdue into new directions to provide a whole new set of answers to what should be done in higher education with the challenges that we face today. sean i think among other things he is the only masters and sam adams. is that right? [laughter] he was an entrepreneur, a meir and now the governor of the state of colorado. let me start with a disjuncture we are facing now. when we come out of the recession there has been a mismatch. there are people looking for work and people that need to

hire yet they don't align. with what colorado has been doing int and purdue and indiano try to get a better match between the skills into the workforce. >> let me frame the issue in this way which is most of the people in the room certainly many of us have been part of encouraging people to get a college degree for decades. and for decades about 70% of americanamericans haven't gottea college degree. but americans have great skills and the mismatch walter talks about is due to the fact that we have increasingly required diploma in the experience onto the job description as our jobs have been involved in the advanced manufacturing and information technology and healthcare all these jobs that are being transformed by technology and that are competing in a global

environment as you alluded to. so what we have been doing is to say if asked the jobs are trained to these changing it is to break down and understand what th their skills are that ae needed for these jobs and to help people get that training for the skills whether it be training on the job or training and educational institutions this isn' is and to the exclusif getting a college diploma. if we can do this, more americans will have a diploma over the course of a lifetime because we won't be telling you that by age 22 you either succeeded or failed and that is a big part of the challenge now is to help every american see themselves in this new economy.

it's to start out with something called skillful although it is oriented towards the jobs into geographies and what we are doing is creating the labor market that works for the middle that doesn't have a college diploma and john has recruited employers to participate and is looking at them for skills. we have workforce centers and folks on the ground helping them figure out how to articulate the skills and we are training people in the middle. it's mostly been for professionals but they are working with us now so it will work for the middle class and we are training people how to post a job description when you're not posting.

but how do you define your skills and then to connect that with employers because the jobs are growing. it is tremendous if we can connect the workers and their skills. >> there's a whole chunk of society behind as we have a resolution that since there are all of these innovations tied to the globalization, people have lost their jobs and we have done a pretty poor job of getting them engaged to something that they had close to before. we had been looking at the achievement gap and what marco

is doing is saying there's more than one way to address this in the technology way and we have understood that it's not just about the education doesn't just prepare you for life and it is life and a career and yet too much of that preparation has been focused on the career and it's more of skills, so we have been looking at how can we do the scale of apprenticeship so they can go to work somewhere and get paid. you might only be eight or $10 an hour but they work for three days and then they go and go to a community college or a workforce training center or private enterprise or a place that has been accredited with a study something that helps them and i'm not just talking the pipefitters and balding. we are talking the banking industry and all different manners of advanced manufacturing and insurance industries. so these kids are getting

trained when they are not at work in the curriculum that again but how do you read a newspaper to see the economic trends or understand what others might affect your business but at the same time learning the basic skills that you need. now i'm a tiny bit into the skills into the businesses that we are already getting t givinge employees at wal-mart training kits on hotips on how to do invr starbucks and how to do customer service there's no place to collect all of this information. and to look at the skills that you acquired when you are taking different courses in this skillful platform they are providing a way for the kids will eventually get to the point where each community college class not only will the curriculum be there but also what skills you will get. kids will be able to click on one skill of a couple of them but go to a place where it shows those type of jobs the skills

help prepare you for then you click on the job and it will show you what others you might need to acquire so in real-time allow kids to have a bunch more direct and authentic relationship. we are not trying to have the government or anybody intruding into the individual's privacy. it follows that and it's not just about what degree you've got. i will leave it at that.

we are getting people rapidly be trained for the job. we get 20 some thousand, 24,000 jobs waiting to be filled. many of them technology and you don't need a four year educati education. they get the jobs that are 60 or $70,000 that would be good compensation for them. the trick is how to make that happen. there's the initiative to be the innovative universities. we are doing the things that might be useful to modernize for the economy the governor is

talking about. one of the colleges got the first certification anywhere for the residential so-called competency-based degree for the artificial calendar and in that institute we think that the education much more closely resembled the work and there will be the team taught and learned. >> i don't worry about our graduates. there's there was a mountain ofo support that and i think we have to be appreciative first of all for the efforts like those just described. everywhere i look there are jobs waiting and there is a mismatch. i don't know that there are enough of them in the right quality to sustain the

middle-class society that we've had and the constant optimism. but the confidence in the democratic institutions which is always undergirded and that's what i think were you so many of us this year. to me that years of stagnant to low growth could have produced a situation like we have now. we are not going to have america's staggering along that historically is from a very deep recession but even if we had a vigorous recovery we would be worrying about these problems for the inequality that could flow from them. what i'm trying to understand better is what else we have to

worry about. the erosion of the so-called social capital is a big part of this. you can have all the training programs you want in the world but if people have had no sense of motivation in their lives in the connectedness we once took for granted that you're not good to have economically productive people. the effect of the automation and so forth is in the near term and i guess it's always been a techno- optimist and i cleaned on to that. but you know, somebody calculated the three categories in this recovery for the three fastest growing categories of jobs that were retail food service and call centers that were perhaps the most easily automated jobs that we could think of. so i think we have some structural issues. some of the problems were very self-imposed by the choices

we've made that have limited overall economic growth. but even if we get on top of that problem, we have got some very tough phenomena to wrestle with that i don't think we have seen before. >> when you sit choices we've made to limit economic growth, give us some examples. >> how much time do i have? >> hiked taxes and walls because they don't have 50 employees or pay anybody more than 30 hours for the serious consequences which have higher minimum wage requirements. let's have a paid sick leave. let's trade contractors as employees. let's treat the employees as franchises and the firm. you make it more and more expensive and onerous and difficult to hire people full-time why are you surprised when the fewer people are. and quickly, indiana has had in

some places a low rate and in some places not. as you put your governor of what to defend a line and? >> what didn't work is the sufficient improvement in the k-12 system. a lot of changes were made in the right direction but i think the biggest problem our state faces right now is the human capital issue. we are not yet where we need to be. we do have the raids of college attainment and so forth that were mentioned. manufacturing jobs have come back thanks in some part to lower energy rates. there is a place where american ingenuity has flowered and we should feel good about it. but i don't think that anybody

should feel unhappy. i was raised to think that the most predictive variable in terms of politics with the unemployment rate and i think it is meaningless today. the experts here can tell you what goes int into it into it id slightly but that's the one to watch and is 10% in terms of people that have given up and are underemployed, whether they are employed in a temporary or a part-time way that isn't going to be satisfying. let me take that and turn it over. what did you do about this hollowing of the middle-class and also a growing number of people that are underemployed and mismatched. we did some focus groups with john and folks from northstar and we wanted to understand

before we acted to understand if people wanted to get training if they were looking for jobs and some of the most powerful focus groups were focus groups of people in their 40s and 50s who all had jobs. but when you ask them do you go on the internet to look for a job they all raised their hands yes. and when you said to them how often do you do it, almost all of them said every day. they were hungry for something more. can we get at what that is a different kind of job or high wage. that is insignificant part of what is driving it. it's for young people to find career paths so we can talk it out to find the jobs of the future and how to think about the jobs of the future. and they feel underemployed and

they are hourly workers even if they work for big companies and they can't tell you what their annual income is. it's a very surprising moment of the people that work for the fortune 500 companies and these are people in their 40s and 50s. >> mitch is right. we have to make sure the jobs are there for people. we have a collective effort called rework america and wrote a book called "america's moment".

>> will you hold it up? it is right by your foot. >> this is what i want to get into. how to create more jobs. we talked about human development in the book but we also talk about how are we going to create many more jobs. good jobs. and we concluded and this is a bipartisan effort of ceo's, tech officials, president universities, we concluded that globalization and technology do provide an opportunity to create many, many more good jobs because americans have the skill, know how, talent the word needs and the middle clas is growing all over the world. we need to use technology that make it easy for people in small and medium size businesses, which is where most people are employed and most job growth

comes from, to make it easier to sell in the global markets and become part of the global economy. not because you have to travel but people say you don't know who is buying from you on the internet. you don't know if it is the neighbor or the dog well you don't know if it is a neighbor or someone in another country. we have done research with ebay. if you look at people selling goods and increasingly services on the internet into foreign markets their companies are growing faster than companies not selling globely. that is one area. another area where we can create many more good jobs is enable small and medium size businesses to use digital knowledge, to use the same kind of data analytics

that big companies are using to find markets, sell more efficient efficiently, understand who wants what kind of product, customize were o products. it is not just nike that should be customizing shoes. anyone should have access to that knowledge to grow their small or mainstream business. another thing we are working on, and believe can help here, is for platforms to develop and there are companies in these businesses that can help people accumulate information. small business doesn't have a lot of big data but if they are part of a system where the data is available a small business in indiana can get information from a small business in colorado and figure out important things to grow their business. there are a lot of other policy directions that could help here

to, to help get capital, to use this kind of information. but the bottom line on all of these ideas is that we are in a totally new age. we have a totally new economy. the transformation is as great as it was when we moved from an agricultural culture to the industrial age. this move from the industrial age to the digital age is as big of a move. yet there was a study done of the presidential debate and in 25 debates according to the study there wasn't a singm time the word internet was used along with economy or jobs. we have to have a conversation about the digital economy and how to create many great jobs and prepare people for them. >> governor, picking up on that, zoe said technology and trade can actually create jobs rather than distrait -- destroy them.

but people are angry thinking their middle class jobs have been destroyed by technology. where do you stand? has technology destroyed jobs or benefited jobs? >> i want to recognize former governor daniels as one of the leaders in this for a long time. when we talks about the social issues pacing people's desire to work or better themselves that is not a partisan issue. and i am not saying that because colorado legalized recreational marijuana although i will point out we have evidence, no data, but we are seeing less drug dealers out there. >> that wasn't the drugs i was talking about. >> but it is a whole universe there. the other thing that is not a partisan issue is red tape and

rating bureaucracies that get in the way of people starting a small business. most small businesses are smarted by the best sheetrocker in the country and he is going to go start his own company and if there is a lot of burockeries he needs a lot of incentives. so the question of getting to the middle class is not just technology. i have seen technology -- there is a company in denver, four years ago i got a tour, it is called the belgium electronic sorting technology, it uses conveyer belts with a thousand cameras above it taking ten photographs every second and as these, let's say blue birds, go over the edge, they take the red ones that are too sour and put them in a discard use, the ones that are not the right shape, they go into the juice ben, and the ones properly rounded land

and get packaged for consumer sales. each one of these things was $240,000 to buy the machine and each one gets rid of six jobs. i went home and couldn't sleep. it isn't just the technology. it is imaging and all these things. but i am a technical optimist now. i think we will create jobs. right now we have a bottleneck and almost in every industry where you don't have the necessary labor or capital you stifle the ability to grow and the growth creates the middle class which feeds more growth. i think getting in real time enough people where these companies can grow at the rate they should will be catalytic. it won't just be the united states. i think the middle class is growing around the world.

if we get it right, and can get the workforce and capital where it needs to be, we will see in years with a lot of work, genuine increases in productivity all over the world. >> zoe said the transformation we are going from industrial to digital economy is similar to the one when we went from agricultural to industrial. one of the things we did, a hundred years ago, is radically changed education by saying high school should be free and universal. what radical changes in education should a company do during this transition? >> it has to start at the bottom. this has been said for loosing track of the decades. the nation at risk report is now three and a half decades old.

one cannot say we have made nearly sufficient progress. some would say very little at all there. everything you are doing after 12th grade as far as i am concerned is factory recall work. i favored one change we didn't get made in indiana, but i think i favored, was if a student graduates with a diploma and they are not ready for college or school, the remediation cost ought to go back to the high school rather than the tax taxpayers. as simplistic as that is, you will not have a complete solution that doesn't deal finally with the difficulties of our k-12 systems. i love zoe talking about the programs the governor has in his state.

i answered your previous question, i think one thing we didn't make enough headway on during my time in public service -- and one additional obvious target of opportunity is the huge big number of americans who have some post-secondary education and never finished. going after them. there is great stuff going on in the online world that probably fits them better than today's 18-22-year-olds. >> one of the proposals from both parties, but obama embraced it, is to make poly tech, two-year community, or trade school as common and free as high school was made a hundred years ago. does that make sense? >> it would if we were not $19 trillion in debt. >> you think it will add to the debt?

>> of course. there is no free. i am not saying all such ideas a bad. purdue university, we are in the third year of what is a four-year tuition freeze. self-imposed. nobody made us do it. the graduates will leave a purdue that cost less than when they entered it because books are cheaper now also than they were. there are a lot people in the system can do. it is well established there is scholarships across the country and flooding any marketplace with subsidy dollars does not lead to less expensive education. the system pocketed much of the money and passed the cost on to

the intended beneficiaries of the subsidies. so i don't think that is a fruitful solution. >> and since you are short on your answers, and tom i will keep pounding on you, you are the co-chair that zoe helped support for the marco foundation. we at the aspen institute are hosting that. you are the co-chair with senator mark warner on something that ties into everything we are discussing which is how do you have an economy and a social contract that deals with what you call the 1099 economy where people are not just going to a factory at age 20 and dying at the age of 60. c conner is directing that. did you have a particular way you wanted to frame the question because i wanted zoe to speak as

well. [inaudible speaker] >> still then to come extent, pensions, and benefits and things that used to be better than the employer-based economy. i will answers you the way i did on senator warner. i keep trying to evade this but couldn't. i don't pretend to have these answers. i will sign up as an exercise in continuing education because i fully expect to learn a lot more than i had to impart. it is a fascinating phenomena and i have been reading into it a lot since that assignment came along. one measure, fairly recent study, all of the new jobs in the last decade of the country fit into this category of

temporary or on-demand or contracted. that runs from outsourced janitor down to uber. but still it is a real and growing phenomena. we have to ask ourselves do we like this? do we not like this? i read a conflicting sense from the same people on this sometimes. there is a lot to be said for -- the flexibility, the independence, perhaps the dignity that goes with choosing your own work, time and place. it it has all of the downsides conner is asking about. these folks don't have health insurance, workers comp, and all these things we associated with full-time work. will we try to introduce that to the system? if so, how?

if we don't think this is a positive trend, and i am agnostic now, we are doing things to push things in that direction. you would think we had a conscious strategy to maximize it number of temporary, part time and independent workers because of the things we put in place against full-time and traditional employee. >> that is a topic in the book "america's moment". what do you feel about the new funomi funomi fun phenomenal? >> it is a very fundamental values question for this country. we are driven by policies and laws that were enacted in a prior time.

to mitch's point i don't think we are intentionally driving things this way. i just think we are not having the public and policy debate to write the framework that works with the present economy. we have not had in washington a political environment where that can happen. the states are doing some of this better. but the challenge is not in the first instance in my judgment figure out what law to change. the challenge i think is what are the values tat create the whole of america in a new economy and when you are talking about social safety nets, when you are talking about economic security, and some of these broader questions, we haven't even begun to have that conversation. auth arthur alluded to it in his opening comments and i am

grateful for the collaboration. but i think we need to have a fundamental conversation in this count raechlt we can debate if government does it, neighborhoods, good will, we have good will working with us in training people for skills-based labor market. people don't realize how much the social institutions on the ground are changing because of the tremendous needs in cities and states. but we really, i think, need to figure what we are going after and then we can address the policies. >> i have a question for the two governors and then i will open it up so be thinking about what you would do. i watch the cases and there is a new book called wondering the country on a bus, and going to cities across this country that are suddenly coming back as opposed to it all happening in silicone valley or new york.

and in your state, whether it is bolder, indianapolis, sougd south bend, and places in indiana, with a new creative economy coming back into the cities in particular and starting new jobs, being innovators, being entrepreneurs. what can we do to encourage that? is it a real phenomena? where do you see it happening in your state? >> i think it is real certainly. a lot of it is richard florida's predictions 12-13 years ago with the notion there is a creative class and the young graduates are coming out of school and living where they want to really live rather than starting with a company and spending their career there. we started in denver and modified taxes for places that did live music and now there are

more live music venues in denver than nashville or austin. we are one of the top two destinations for millennial's looking for a place to relocate. we have a thousand miles of bike path in denver now. these are things you would say improve the quality of live but it attracts young people and so many of the kids who write code for the internet or create software who were nerds in the school and didn't hang out with the football players or class president or cheerleaders. they hung around with the musicians and they like to be in a place where everyone is accepted and welcomed. and i think that is why you are seeing cities like indianapolis and denver really are succe succeeding. you are seeing a blossom around the sense young people are defining their own lives. >> i just read the great cover

in the atlantic and it talked about even in small towns, thinking about indiana, you are seeing a revival. what can we do to nurture that? >> our predecessors were not as -- they built the rocky mountains. we have to work a little harder. one of the great, great strengths of your federal system is that this is a genuine competition. states, we see all of the time, that screw up long enough someone comes along and says that is not working, let's try something different. and states don't compete on anything more aggressively than building a hospital climate with jobs and the kind of people the governor is talking about. that is all we worked on especi essenti

essentially. that was the organized stuff we worked on during the eight years i was governor. i have had the same romantic notion that mr. fallows have. it is absolutely correct. every state i know of is still depopulating. the jobs are not all going to the coast. because they do everything they can to push them away. california likes they are doing a favor if they hire someone. you come to indiana, and index to the national cost of living it is 92 cents. index to california or the east

coast states you will take home immediately 25-30 more cents from every dollar of revenue. and colorado is pretty hospital, too. i think we have a challenge with the smaller communities. the metro areas with university presences that seem to be attracting these folks. i will leave you with one last thing. we are taking something of a calculated gamble at your university. we live in a nice town but it doesn't have the features our competitors do. we are doing a 50-50 deal with our town where peel transform the whole stretch that connects us to the town and runs through our school. this is either going to be a big step forward in attracting

students and faculty. exactly the kind the governor sees coming to denver. or somebody in 20 years is going to go what idiot. who spent money on that? we will find out. >> daniel patrick once said if you want to build a great city build a great university and wait a hundred years. so we will find out in a hundred years. quick hands came up. i will get you and you get. >> i am with the progressive policy institute. you mentioned the jobs that don't really require a college degree but ask for a college degree. governor daniel mentioned the people that don't quite have the degree but have the skills relevant. wondering if the panel can talk about those failures and others are long-term employed with talent who don't get their resume seen or people who served

time as felons and their talents are not accepted. what can we do about the large population of people where their resume signals are wrong at the time? >> that is part of what we are trying to take on. you guys have done a lot of good work particularly on the issues where the information comes from. it is possible to take a biotech job, for example, burning glass which you must know has done interesting work where they looked at biotech jobs that require a college diploma and broke down the skills required for those jobs base on what people are doing and the job they say they need to know. they found that most of the middle skill jobs they looked at, which are good paying jobs that lead to create career paths

in biotech which is a growing field, could be done by someone with an associate degree in two biology courses. that is one example. there are other examples of jobs like an executive assistant job which 20% of the people who are executive assistants have a college diploma but 60% of the jobbi jobbi postings requires a colle diploma. if they picked up a new program or spreadsheet you can reveal that on a profile online and dem nivate that even though you didn't get the college diploma you have all of the skills needed for an executive assistant or advance manufacturing job in biotech. that is what we are doing with linked-in. training people to demonstrate their skills differently, we have an employer tool kit where

employeers can look at the different levels in these fields and apply that to their own job posting. we are trying to break through and this will be reiterated and revised and many new versions as we learn but that is what we are going after. >> will you introduce yourself? >> hi, paula, how are you? >> thank you very much for the very excellent, very rich conversation. my question i am asking on behalf of the national center for women in information technology. one way you could do something about that problem is don't ask for gender. ask for what your skills are when you post those jobs. we are actually doing a study with the mayor of new orleans to

see if week find the bias' that might skew who is eligible for jobs, too. we are actually trying to get at that. not just gender but a lot of other issues. we have 150 different documents for free. pull them down, use them and apply them to your own culture, corporation, or setting academics included. my question really goes to the president and the federal government's role as the leader who has announced this computer science for all initiative which is dealing with the fact the states have not put computer science and computing into their

curriculum. there are those that think we are spending too much and should be hesitant about investing in our workforce or infrastructure. but education has a lot of money being spent by the state and local. i would like to see how you feel about it. >> i thought that question was really about the federal government. >> we will run you for national office if you want. >> not right now. i think the different states are progressing at different rates and i will be interested to hear what mitch says on this. you know the controls right now, you want to change that and take it on, you have to go against the academic bureaucracies within the universities and it

is hard to pry them outside of their traditional way. we have different school districts that have done this. colorado let's the local school districts have a great deal of leeway in how they address this. i think we have great successes. my job is to make sure those successes get spread to the other school districts so they can see the outcomes they are getting. you start teaching coding in 7th or 6th grade and let kids work into stuff that is fun. how do you design a simple computer game you can play on your smart phone? the next step is the governors compete with each other. as governor daniels said, republicans and democrats as governors work better. i was the chair of the national governor's association and we can come to maybe not a consensus but agreement easily.

but doesn't mean we are not intensely competitive. hopefully as those of us doing it, broadcast the success and brag in governor's meetings, it will change rapidly. i think the president is trying to say that process is too slow. we need real-time change. i don't disagree with him. the motivational incentive, like anything, you have to align self interest to make change happen. and you know? the process that is going on right now needs to be incentvised. you have to right the right incentive. >> we had the first computer science department in the world at our local university. so we are very committed to making major investments to growth. the demand exceeds any supply we can create. i have had more than one person suggest to me it was an