mandatory consultation requirements of section seventy two of the endangered species act which i'll refer to as e s a have been triggered for the federal energy regulatory commission or for the first i case that operation of this for license process may affect the threatened spring ranch and york well i thought the first question was is there an action in order for the right consultation to operate there has to be an action by the agency and we have a couple cases sierra club and the judge wrote as i recall and that's correct simpson timber where we say no action no duty to consult  the court was looking at a road that had been permitted to a private party and the question was when a species was listed that that road might a fact did the agency that permit species there was no question as to whether there was the initial federal action action under the endangered species act is defined very broadly to include licensing and i'm sorry i didn't make myself clear let me let me make myself understandable if i understand the case right you educate me if i do not understand it right that the government gave a permit for the dam years ago dam was built years ago that that was an action right now the outfit operating the dam has a right to do so as long as they conform to the permit the permits up for renewal a few years down the road renewable be an action ad but in between no action by the agency maybe action by the weather or the fish but no action by the agency well the way it looks to me so i understand that that's the way this court i don't really see why in the well relative not that recent case of turtle island network what the court said was if the agency has retained jurisdiction such that required let me ask you this internal island do you read that case saying that the agency had to go back and change the permit it already issued no i really i don't really and i don't we this salahadin you're not i think you're saying that inaction is an action yeah you're saying that since although they haven't they issued the permit years ago they could take an action to change the permit and they have to give notice to the hearing is great profit to change the permit then they could take an action to change the permit they have taken no such action and you're saying that's the action no what i would say the action  some years later there was a question as to whether road construction pursuant to that right of way would affect the threatened northern spotted owl and its critical habitat the court conducted a searching  review of the of the record in that case to find out whether the agency had retained sufficient jurisdiction to take any action that would actually end up affecting that speech and the court's conclusion turned on the fact that there was no retained discretion to protect the species as judge trott wrote the federal agenc discretion to influence the private action because it does consultation would be a meaningless exercise into the agency simply does not possess the ability to implement measures that inure to the benefit of the protected why don't they lack the discretion here because they don't they can't do anything without notice and hearing so they don't have discretion to do anything until that is to tell the russians that the standard that the ninth circuit has laid out  on by a federal licensee and the licensee empowers the government to impose changes in the license in certain circumstances the government has not done anything to do that that never the and your advocacy group and any others on either side could demand continuing consultation for the fifty years or whatever these license terms are for the whole time because of any time the government would have the power to impose a change well first license he did not i mean they would have to pay attorney fees to your group and consult her during the whole term of a fifty year license well no your honor they would only need to consult if between i mean here is part of the problem the endangered species act is an extremely powerful act in which congress has expressed its will that endangered species be given the highest possible priority you've got another agency governed by the federal power a pendency of that fifty year license and the whole purpose of the congress is set forth in allowing that listing is to prevent its extension and the federal endangered species act creates an obligation on a federal agency to take what measures it can  then i would say yes the congress has intended that agency at that point to consult once not this notion of ongoing consultation or the notion that there's a piece of the whole fifty years nature changes every day and every season and it's gone going and it's being operated by p g unique i cannot find it but maybe you can help me any case other than turtle island in which there was an ongoing program that the listing of it  lots of these things now up there and i can't find it well i think this is somewhat of a case of first impression we've looked as well but there is the case of water watch which is very similar to this case a district court case from the circuit in which the army corps of engineers granted the permit four to a private company to run a couple pumping stations up in the pacific northwest at some point whether they were newly listed or someone just discovered that those already permitted privately operated permit i guess in that case from the federal agency the army corps of engineers provided that the license terms could be changed in that i believe it was very sweeping language in the public interest in the public interest was somewhere defined as meaning protection of fish and wildlife among other things the court held that the army corps of engineers had a legal duty to consult with respect to the effects of those licenses previously licensed pumping stations on the the in the analysis of the court what was important to the court what isn't every decision of this court that's looked at the question of federal action and duty to consult is whether the federal agency has retained sufficient control and involvement or they sometimes put the cases continuing decision making authority to create measures that would ensure to the benefit of the situation we have here what's been going on short of formal consultation involving for a commission or examined to determine whether it's in jeopardy well i mean the fish is listed as threatened to you my formal consultation  below the dam they operate may affect that fish so putting that question aside you've got so really informal consultation shouldn't be i mean there's no real basis for it we've already answered the i can go into some detail on this if you like there are real significant differences between informal consultation the other one they put out there is early consultation they've now engaged in early consultation on the relicensing of this project i don't get the difference in terms like you want to consult they say we don't have to consult but they are consulting and you are consulting in the only difference is you get attorney's fees if you win the case that you are going to hold your honor and that i think it's a somewhat  incidental take permit which basically says some of these endangered species are going to be lost in the course of this project and that's against the law under section nine of the endangered species act and if you go through formal g was on the nine rehearing so i have tabled seventy seven and put over thirty three kind impressed me because they're thinking well we have a lot of things to consider here and one of mr debility so that people will build dams and of course that bears on getting enough electricity for the nation at night they say that the practical significance of your position since there are thousands of commission license projects that include provisions reserving commission authority is immediately formal consultation based on needs distance of them whenever a new species was listed would seriously disrupt the hydroelectric licensing program licenses or contract intended to provide certainty and stability for the term of the license which often runs for fifty years at what what's your response to that practical concern over my response to that is that the federal power  specifically requires the agency to give equal consideration to fish and wildlife in its licensing of these dams that consulting the expert agencies are after license on and get licensed no but kleinfeld you're right the central question is is there an action there is no proposed agency action here except the relicensing in the future and of course the consultations ongoing  threats that the bad cases here cover says that it absolutely does go against the petitioners in this case in that case there was no agency action there was the past permit and the reason the court looked at w and there might be if there were enough control and decision making authority in the agency over this past permit then the court might have been able to in a sense consider this an agency action but there wasn't and similarly in this case of course in that case there was some ongoing oversight and monitoring it wasn't completely hands off but the court held that it just wasn't enough well this is this case is a little different you know what article thirty seven says and why doesn't article thirty seven fall within the language in the turtle island case it says whether the statutory language can persecution discretions so that the agency could condition permits the benefit listed species or the turtle island he's really got the second question where you do have some ongoing agency ac changes in the project and its operation is maybe necessary to protect and develop natural resources i think project so you reserve something for her right of change army reserve the right to change the project  its operation well as your honor pointed out that's not a plenary right to make changes it is limited in the circumstance that the commission can't just reopen these reopen these licenses without really a basis for doing so and i would know although the park is not entitled to deference in interpreting the endangered species act with regard to interpret the meaning of the three opener causes as well as the limitations on its own action by these licenses go on for what fifty years they can and they deliberately put in this is a long term license isn't the point having these provisions substantial evidence or supporting evidence that something needs to be done they do give the commission an ability to act that it wouldn't have otherwise and but in that it's just sort of voluntary and it's not it's not it's not pursuant to the statute if there were some if there in order to try to save lives we'll say on you know if if the well i will say picking up on another point that judge tried had made there is an ongoing process this isn't a situation where the commission is sitting back and saying we don't care we don't want to hear about it but we're talking about this but in the course of all this informal consultation on the ongoing monitoring if there were evidence that something needed to be done that changes needed to be made terms of what it's about factually was that the coho salmon that aren't smart enough to swim upstream in the fall like everybody else swim up in the spring instead and they're not doing well because for a couple of warm summer's so the question is whether to consult on whether to do anything about that now let's say hypothetically that the agency was totally unreasonable that it's totally ignoring that this dam is just killing all of us spring telling of a need for agency action they did that i mean my guess is that most federal agencies they consult with each other and fish and wildlife and all these different services and they probably do some on their own let's just say hypothetically they do nothing and there's a petition that they take an action to protect the spring run sam and be agency just blows it off does absolutely nothing no response can the petitioners then appeal after the what we should do about the fish is what's what oh there's a there's going with it's not that we're not doing anything for the first of course there is an ongoing process and there has been before the argument that you are legally required to initiate formal consultations right now and the only agency action if you're going to lie on section seven there must be seventy two there must be an agency action this court in defenders of wildlife so that section seventy two is a do no harm directive with regard to affirmative agency actions and in  this case there was no proposed action and there is ongoing and consultation with regard to what's going on with the fish is there any need for interim measures the consultations going on although it is linked to the relicensing it is affirmative agency actions talks about the need for there to be uses the word affirmative several times and refers to the fact that in contrast to section seven a one which is a different issue that we don't have here the defenders of wildlife discussed that of course the case on this is bad and many of the subsequent cases have discussed that turtle island your distinction between the ongoing agency action of continuing to shoot permits as opposed to the completed agency action of having given the permit and the more recent cases in washington toxics and defenders of wildlife have recognized the distinction between the bad situation and the turtle biological opinion as to what the potential is on the on the chinook salmon and what is it no your honor we have not and so they blew one hundred thirty five day i wouldn't say blew one hundred thirty five days as i understand it something that the commission would always put in that sort of letter the hundred thirty five days is actually only required in formal consultations so you don't have a difference with formal consultation is more rigid timelines that have to be extended under particular circumstances here since it was early consultation no fisheries was not bound by that hundred thirty five days as you didn't get it is what you're telling me but there are when do you expect it we don't know we're waiting i believe and he will  effect of that be if the preliminary biological opinion comes back and says big effect on this you know examine what what might happen then i believe that the preliminary biological opinion would also come with measures that need to be means that finding measures need to be taken right now and the commission would do something about that my thanks to this whole lawsuit sure i mean especially if it comes back and says should we wait for the  i mean a preliminary biological opinion should wipe out this whole controversy if forget something and says oh well wasn't used as the authority that you have always been in the process has has overtaken this controversy anyway because if the whole point is to get the commission to consult with noah fisheries where there and it's in the biology no fisheries court they're doing the work they're going to tell us what they think that's seems to be all the petitioners have been asking for they just want it with the particular more formal deadlines and the more formal procedures that we submit are just not required by the statute if i recall correctly this damn permit comes up for renewal in a few years two thousand and nine two thousand and nine have so i suppose to be a consultation process that this advocacy group can inject itself into for the renewal right well sure and i mean the action that's going on now in and since you've already started the consultation on the renewal that was the purpose with the biological assessment and the preliminary biology biological opinion the commission may go back up the renewal well it is but the commission said look at the current effects as well let us know if they're in or in the just problem that's what i don't understand it that goes to the renewal it does it's it's not necessarily to trigger something under the existing contract it is only in our position legally required to do the renewal because there's a proposed agency action but in fact the commission has said and i trust me that you know thank you m specifically said and i'll just give you a couple of very precise in our supplemental excerpts of record at pages twenty four and seven in particular we said you should be talking about what's going on now and the need for any interim measures but do it in the context of the ongoing because it would be redundant anyway do it in the context of the ongoing consultation as well since the separatists are saying they're not doing anything about the current situation we're in we may not be required in the absence of a well sure i mean the question there's a difference but there are the sanctions we made in the commission mention in the order sometimes we find desirable or so i think it would depend on what the supporting evidence were there whether they hours a day so that you have a few more fish then they might not but if the pinion was all the fish are going to die unless you change the flow rates right now right i guess they might  inveterate salmon killers consultation either has accrued or was shortly of grew so that the plaintiffs in this case can consult because the renewal is close and if that's true yes yes i mean they're absolute they're issue of action and service started it's a two part test you first have to determine is there action in the turtle island or there was action they were issuing fishing permits is there reserved authority in our case  you better believe there's a lot of reserve authority but there's no action fundamentally nobody is sure what action to take and that's why beginning in one nine hundred ninety two for began consulting outside the endangered species act with the california agencies with know with fish and wildlife service and has continued to consult and demand reports right up until the present day well but this suit is requiring consultation for most i think one more consultation seeking to as you read back through your decisions you will find that case after case even the supreme court case invented the spirit unanimous decision there has to be a proposed agency action there is no proposed agency action here we have been in informal consultation with no us since two thousand and two talking constantly with ferk with no or with the california fish and game agency we have been an early consultation biological sestak was filed by us with her in two thousand and four or two thousand and five for can dop it and sent it to the agency and asked them to produce a biological opinion we're still waiting on it but in view of the of the very favorable findings in the biological assessment which was essentially keep the status quo no new action we are very confident we're going to get a favorable graft biological opinion us what can happen in that situation four things can happen first of all the status quo can be endorsed nothing happens secondly there could be a suggestion for a change in the tweaking that is now going on every day in the summer time release more water in a hot day release last quarter on the other days that's what happen today and it could be that herc will say and the agencies will say that's tweak in a different way we don't need perc approval for that we have authority under the existing license to do a lot of things within a certain range and thus there would be no federal agency action there could be a finding i don't know what it could be you need a major concern consist operational change or an or a structural change that could only take place with f action for could very quickly turn that report into an article fifteen proceeding issue notices have a quick hearing a paper hearing and be done with it or there could be a finding fourthly o that would be a p g and e problem and we would then have to pursue a section nine and ten activity with the agency or seek a biological proceeding at fir which is by the way commonly done in case after case in other licensing situations of perc now one thing i think the courts should also look at is what triggers all of this the listing of a species that's what the petitioner say let's first of all the evil only goes come in go there all over half the projects in the united states when there's the agency have to consult on the bald eagle when it shows up when the nest is there when it goes away you know for in those kind of the cases wait in what i call unguarded moments where the court clearly noted that you need an initiation of affirmative agency action if you kill fish with your damn at this time  are you subject to the criminal penalties going to jail and paying fines and so forth very definitely in france under the section nine that would be a take we don't think that's happening i mean we're not running fish through the damage to the terminus that was the problem on the columbia river and when those fish were listed the licensees quickly did one of two things some random ferkin said quick start an article fifteen proceeding and give us the chance to get a biological opinion and then so then we'll take statements or an incidental free ticket other agencies when other licensees went to the agencies and said please let's consult under section ten get a habitat conservation plan which will give us an incidental take permit and protect us because we want to do a lot of things for the fish and that's what happened in this situation whether you like it or not nobody knows the perfect answer there is no actions of someone is saying let's take it in the petitioners repeatedly of say that we haven't a clue we're not asking for an article fifteen proceeding let's just consult formally instead of that's what's wrong actually kind of like i don't right i understand not really saying that if they two applies to ongoing agency actions and the way the term and whether there is an ongoing federal agency action is to look at the question as to whether the agency has retained sufficient jurisdiction to do something to benefit the species that is what is said in sierra club versus babbitt that's what's said in the epic case and that's what's said in all these other cases i would also point out that there is absolutely no case law cited that supports this further draws between having discretion to act and choosing to exercise that discretion there is not a single case that says that that's of any legal significance whatsoever to me as a practical matter maybe we ought to wait for the preliminary necessarily to decide what's wrong that's what's wrong with that is that early consultation which is what this biological pet opinion whenever it comes out will be on appliance by the law it's a creature of section seven eighty three of the endanger been a couple of months we're completely down the road and they're putting in the changes i would argue that you know that at this point this species was listed in one thousand nine hundred nine ten years before this license was up this consultation on the existing ongoing project certain legal ramifications come into play the national marine fisheries service which is the expert agency on dealing with this rich and which is asked for formal consultation and been denied to refuse by firk would have a stronger hand in proposing measures to protect the fish right now and those measures could not be ignored and it doesn't give us given the history of this project let me