it and i'll let you do that but since i already said it's my time the i do have i do have something that i want to ask you in time said one of the things that first right after had to do with standing under ten the standing issue in our response brief but no your honor we don't concede that we left standing on the ten day issue there's nothing in the federal power limiting the standing of conservation groups to to appeal failure to comply with the ten  that i do not know of any cases specifically addressing the question of ten j conditions i will point to the court to i'm sorry i'm blanking on the case at the moment i'll find it for you but there is a case involving american rivers was american rivers standing to challenge for its compliance with section eighteen prescription but there wasn't a ten but i don't think each i don't think they said that did they make the same did for say that you didn't american reversed no that didn't have to do with a change a condition that had to do with a section eighteen condition so it doesn't drawings yes so it doesn't really exactly answer it are you challenging the other thing is i didn't know whether you know obviously there are there are things that come out of that area that you might be arguing to say well this is more evidence of why it's arbitrary and capricious but if you're actually making attention a challenge are are you doing century are doing i'm going there when they're in the red brief when they said you do not have standing to do what you're doing to make a ten jamie essentially challenge and are you doing what they said you're doing i think that the specific question i believe that first was trying to address is are questioning their failure to make proper findings or adopt the ten day recommendations and that's a fairly that's a specific narrow question at issue here but there are many other issues that we've raised that don't address that very specific question but i just found it on usual that you talk about everything else in your great brief it's pretty fact but they raise a standing issue when you just don't say anything well you know i apologise feel we did not adequately address that we felt like we were addressing it in the standing our standing discussion generally that we have to have standing to challenge a first license order including for its compliance with conditions issued by other federal agencies well i think they did make more than that but that was but that was said to predict for challenge that they were making any t it's arbitrary capricious because the environmental impact statement itself said that in fact i hope our heads that it planned to meet any future generating shortfalls not with a combined cycle combustion term but with either purchases of power on the market which is much less available to me power shortfalls it would happen only one hour a day and only in one month that of the summer and only in seven out of one hundred years and the department of interior pointed out the on reasonable ness of this analysis yet didn't adequately loss as i said directly contradicted the record but further more on the benefits side completely failed to assess an important aspect of the benefits of run of river operations the actual economic benefits run  operations and under play the environmental benefits of run of river operations despite the analysis of fish and wildlife and fish and game that there be vast environmental benefits you know the economic benefits were a very important issue here because benefits and we're not talking about placing a dollar value on environmental benefits we're talking about very real economic benefits we all urged to consider those economic benefits and it's a cost benefit analysis yet for refused to do so claiming that it would be it would be purely speculative despite the fact that there's many well accepted methodology for figuring out how to what economic benefits of recreation possibilities are  analysis which there's numerous cases from this circuit in other circuits saying that for it cannot rely on inaccurate economic information and its cost benefit analysis either inaccurate or misleading economic information as well as that it must of sturgeon mitigation protection of sturgeon was one of the most important issues in this case all the parties brought up this this question of how these projects affect white sturgeon and the need to immediately provide protection for the species  thinking about it it's another thing to defer assessing what the appropriate measures are and i think if you sat here in the last case we talked a little bit about that and why isn't this just that there are differing protection or medication measures  what's necessary for you know an incremental dates in the future well i would put it in yes come on this court talked about that that is required to both consider and decide upon sturgeon mitigate or  research and wouldn't that be art then wouldn't you be arguing that's arbitrary and capricious because you haven't done enough research well we've seen it would have been a more reasonable course and in compliance with this court's holding in the act and on as well as dilla flame case in the california versus federal power commission case would be to do what we urged the the commission to do as well as department of interior and fish and game which was to require immediately require interim mitigation and then conduct further studies and figure out if any additional mitigation needed to occur or if they needed to change the terms of mitigation but her here first did not require that interim mitigation and simply defer the question to the future and here for just a flat trying to justify that deferral by pointing out that the current license will maintain the status quo sturgeon protection from the old license but i would point out that that would license was issued almost sixty years ago well before modern environmental laws were in place and well before sturgeon were in the state that they are now well now they have found a storage and protection plan now is that correct correct and just lastly at first out of the fact your argument at all not at all your honor because this is this court's holding  deferring important decisions about fisheries mitigation to the future programs a holistic review of the license to determine whether the licenses and the public interest and that that issue remains here despite the fact that here for discussion was even more limited because i might add here a further approved sturgeon plan without amending a license and without going through any sort of public process not doing any new need for a process as a but they've effectively limited public involvement in this very important question of how to protect sturgeon and i might also add for purposes of their need that analysis you need to requires first to carefully consider the environmental impacts of its decisions but it's hard for them to do that when they don't know what their decision is going to look like when you know they don't have a medication plan crafted yet for white sturgeon and i would point out that you know for talks a lot about the snail settlement and how the snail settlement  provided some operations changes at two of the projects less and more salmon falls for purposes of studying snails so i find understanding your position correctly when there isn't enough information for her to come up with the death of medication the way that they get around that is the the accept the plan that you proposed in the air and they get to modify it no i wouldn't say necessarily they would have to follow approach i would say they should do what they did like i said  in the case of plame case in the department of interior case out of the d c circuit which was require some insurer mitigation obviously we'd like to see it to mitigation we recommended but you know i don't know that it would necessarily have to be that but there needs to be good and here they completely failed to do that so it took no steps to ensure protection of sturgeon despite the mandate in the in the federal power act that each license must include mitigation protection and enhancement measures most significant factors in the climate that snails and fish and wildlife service consistently held this position throughout this process for twelve or fourteen years and even issued drastic jeopardy biological opinions finding that the project would jeopardize three of these five  our disagreed with those conclusions and as a result fish and wildlife entered into a closed door settlement of my clients and no other parties were allowed to be a part of where they agreed to these studies and as a result you know the approach that basically came out of this was it amounted to fish and wildlife thinks that the projects jeopardize the species but since i do hope our disagrees they'll agree to issue this no jeopardy biological opinion for the first five years and they'll do some studies and then they'll figure out if the projects really do jeopardize the species but this is exactly the kind of approach which congress such prevent when it required that agencies the fish wildlife service issue a biological opinion on the best consultation it must consult on the full scope of the action even where there is inadequate information to fully determine project impacts they must make the best decision they can based on the currently available information and here fish and wildlife service fail to do that and i will reserve my last  that they're not their recommendations and so they're not their recommendations to complain about it's very different from the section eighteen prescription where and again i'm not sure of the facts in the cases that petition or counsel decided to regarding section eighteen but my  the wildlife agency the research stations he was party to that case as well as petitioner the problem is there are not any cases out there which always makes me think that there's a reason for that and the problem is that you're telling me now you should have made that argument they didn't even respond to it right and you know it's not our if it's not already obvious i was an environmental lawyer in my past life and so if i mean it's fairly important here you know we're looking at it with really i what i would consider not really very good briefing on that particular issue let me tell you why that's not particularly important here because there's no jurisdictional issue that i did raise and not standing who knows what what  did spend some language talking explaining why they might have rejected anyway but first didn't have those recommendations before any more fish and wildlife and i don't know fishing game so exempt we won the following operations and these page thirty six the agreement changed i hope powers proposal to continue to have low following at the blitz and lower some of those projects to one that would make those projects mostly r r except for two years of study period although were all in agreement on that fishers are ignoring that fact so all of the chow kill ation complained that they said the first thing they wanted to talk about was the cost benefit analysis that was regarding whether they would w the cost benefit analysis to determine whether it would adopt the recommendations to end load falling that's all that was about so that's all gone also gone is any concern about fish ways and your honor you asked about whole fishing game no longer recommends that there be fish passage structures built at the project so while originally they did want to fish passage i have a power no longer wants fish passes so again that's another movie issue in th case you know who didn't want this passion i hope fishing game originally wanted to help our i'm sorry i meant out and i was pretty sure that wasn't right now that certainly wasn't so i'd be happy to talk about the merits of the cost benefit analysis if you want me to or i can move on to something else move on and that also involves the non power benefit calculation conservation law foundation case and so i can talk about that if you and whites sturgeon thankfully are not so when fish and wildlife comes to foreign says we want you to do studies because we have to figure out what to do about these lists snails first has no choice but to listen to that we can't and what they said interim protection of the white sturgeon was unnecessary and if you look at  sturgeon conservation plant wetlands construction land management plans and i can go on and on all of these things are explicit requirements of this license and they are all there to protect fish and wildlife some things do jeopardy is you is that usual for a fish and wildlife to change the jeopardy determination and draft biological opinion into a no jeopardy determination in a final biological opinion and what factors contribute to change but we don't know how much to really and we need to study that so it made sense in this case to say ok let's let's do a study for the door this six year study period we are going to require their studies and you know it was evident that we needed to win we need to have a study period we need to get more information and that it was reasonable to come to a settlement here  which will bring a lot of benefits changing lower salmon falls list to predominantly one of the river operation which they will be except for two years of study i think is very important because that is where most of the change the level of the reservoir very much about a foot and a half and that's not going to affect the sales very much because they live up to a death of seven feet so it seems logical to to come to this se some resilience to this we do think there are some adverse effects but the question here really is not does following have adverse effects is does it cross jeopardy and i think the fish and wildlife service its area is affected by load falling for the bliss rabbit snail we won't because actually most of its good habitat is is not in the river it's in springs and tributaries adjacent to the river we won't for the the f because it is a deep dwelling snail and that's but again the other way if it's just in your head can't you with information that maybe you haven't quite considered and potentially it's no jeopardy but then you look i mean is that draft biological opinion is is just that it's a draft it doesn't have independent legal status and this court emphasized that fact in the south southwest center for biological diversity versus bureau of reclamation issues so by this approach when the snail plan is issued in six years or i guess four years they'll be nothing to come back to address those white sturgeon issues that were raised previously and in fact required underneath to do a full and accurate assessment of the environmental impacts of its decision making and sense from whether the project should be operated run of remote was one of the main issues here first must conduct a full fair and accurate assessment of the impacts of her versus low fallen operations so the cost benefit analysis still very relevant as well as under for example vision to consider whether the license is in the public interest and give equal consideration of power non in the final and i would point out with a great diplomat sales pick that i was particularly arbitrary called because you look at conflicts between it was in the final biological community itself where official wildlife says in the beginning you cannot rely on the spring populations alone for the survival and recovery of the species because those those populations are separately under threat from other activities yet in their jeopardy analysis based is just that and relied on the existence of spring populations instead doesn't matter if the river populations get wiped out because they're warming the spring populations and that's just one example there's many more examples where that are contradicted themselves within the final biological opinion or arbitrarily made changes in description of the science between the draft in the final at eight thirty am right