pipeline which was constructed between four states following the approval of various several agents at various federal agencies now at the agency the actions in this case include thirty three easements across federal properties for decisions by the army corps of engineers to approve water crossings to almost two thousand water crossings across four states and the decision by the fish and wildlife service to allow the take o retain the authority to impose additional mitigation measures and at least provide partial relief and that's true in this case the government hasn't disputed that he has that authority to impose additional mitigation measures and  regulations allow the the court to impose mitigation measures throughout the life of the project and just to give you an example of the of the type of mitigation measures we're talking about the environmental protection agency in this case is worried about oil spills they're worried not system and that's with a pipeline of this size that's up to five hundred thousand gallons a day that could go undetected so e p a suggested several additional mitigation measures including you know monitoring wells in sensitive areas and in fact that document was limited to just looking at half acre fields of weapons for these waterways and in fact that document said that in our pending page three sixteen that that document even says requires more than if you can just look at the impacts to fill to waterways and it says though that all the additional impacts would be analyzed for certain projects at the project level so even nationwide permit twelve itself anticipated fish and wildlife service action but also the easements that there were thirty three easements that were in allies in three separate ways now those connected action regulations in this case anything aside connected actually just for a great lengths to talk about how oil pipelines as a whole are not major federal per se but in this case we have the there is no question that there has been major federal action in that meet the regulations applied the easements were major federal action district court acknowledged that therefore the connected action regulations apply and there the government and embrace neither neither party dispute that none of these various federal actions would have any pain utility so based on the delaware river keeper case in this court and decades of segmentation connected action case law in this circuit life which is in that two percent two to four percent is not in one discrete area it separated across the entire pipeline but it i think to answer your question it's important to break that into two parts of delaware river keeper holds that  various federal actions taking to approve a single project need to have independent utility if they're to be looked at separately so if so for at least the federal actions in this case the  other areas within federal jurisdiction those are connected what you know i think you're asking i'm sorry i don't want to go ahead i think the second part is whether the nonfederal or areas outside of the federal  jurisdiction should be included in that our analysis and they answer to that is yes as well but but just as an initial matter of a lease the the federal actions that were analyzed here are the areas within federal jurisdiction because nec to action regulations in delaware river keeper and him being norton all require that these federal actions be honest togethers and there is some appeal to that but i'm not sure that that that i see that is something that you were pressing in the in the district court you know this or use or have this concent ric claims one is at least all the valuations that were going on with respect to the federally controlled or permanent or supervised lands together in one package and then you have the broader claim about covering the private scope and i guess we'll get on to that with the biological opinion but but the the smaller claim is is that something you present in the district court it is it was in our complaint we allege that each of these federal actions think it does not know if either of the benefits i mean nationwide permit twelve was intended was never intended for projects of this magnitude now when you have two thousand water crossings being being lumped together in the end  and you have think the corps implementing a good endangered species act take and then you have connected to that thirty three easements at least in this situation all these federal action should have bare eyes together this is not a situation where you to the entire pipeline public and private and we know that the ninth circuit has viewed its own take statements as triggering need for review so there's some authority out there but then when you think about this on the ground what is the review that that action should trigger so the action has let's protect species along the pipeline if that's a federal action triggering environmental review service consultation and the insult a statement is is looking at whether or not this will jeopardize the the existence of a species that's an entirely different question as to what what the impacts are on the species and whether in light of that whether or not the project should go forward so of course the fish and wildlife and fish and wildlife service has discretion that would be informed by need but to impose certain reasonable and prudent measures did to minimize those within even when the court is verifying projects under a nationwide permit twelve the district engineers are required to look at the entire project and decide whether they will have more than a minimal impact on the environment in this well though that one thing that would be informed by anything now says the monitoring of course is not monitoring just just for the sake of monitoring it's because there are ongoing environmental impacts from the operation of the pipeline from the permanent  i believe there are over in some of the core areas talk about monitoring from the air there's also on the ground monitoring there's monitoring for you know read vegetation of parts of the right federal and nonfederal actions there are the corps only snipper scoping regulations talk about when they're controlling responsibility has to be extended to up one areas the  the public citizen case cites the fifteen zero eight point seven regulation talking about so so all of these in the course the delaware river keeper case in this circuit talked about use that  that regulation to say all of the cumulative if even if the connected action regulation didn't apply these are all cumulative actions that should have been the eyes together so so those are all that again that's sort of the second question first is that these the federal action should have been there as to gether but then the clearly this is all part of one interdependent project in all of these need for regular sessions together are intended to prevent an agency from breaking it up you know in this case we again we know that the there is need for it was triggered and by the easement and that should bring in the early perspective a very limited geographic parts of the pipeline the only action that is action triggered a federal action itself brings on any form of you know so ramsey ramsey said that if the under the the very broad definition of major federal action  it's the project would essentially be prohibited if not for that action because there it was taking the fish so the fish can say yes it was the fish that it was it was a state run salmon fish program that would have taken other taken species gone ahead once once consultation is implemented in this as it was in this case the corps is prevented by its own regulations from it from verifying the project until that's complete this is not a case where an entirely private actor that is trying to get a section tenant permit under the endangered species act for example this is a case where they needed federal actions before the project could be built and in fact they that was what triggered consultation and those federal actions could not go forward until the consultation was complete this case so this has a fairly there's a fairly small several cases they talk about what i think europe is commonly called the small handle problem where you have a for example the winnebago case involved a core across the utility or and they crossed a single waterway and the there said you don't have to look at everything outside of that well in this case we're not talking about one aspect of the federal government we're talking about thirty five easements spread through you know approved by various agencies we're talking about over two thousand waterways spread along the entire project's length and then of course the the endangered species impacts so i don't think i don't think this court needs to to worry about of a bright right rule i think in this case there's enough federal involvement that not a single mile of this pipeline could be constructed without federal we do worry about what the rule is now and we really you know are very conscious of that but you know i know you to win the case for your clients but it does feel like you're saying well at least in this situation where there's a b c d any of this there should be need to and we're really trying to get a handle on how do we articulate something that's useful for  need to repeat myself but again at least all of the federal actions in this case should have been analyzed together so that's a starting point and then from there the question is whether or not the rest of the pipeline should be should be analyzed and i think there are again the core radio stations one of the factors to determine whether it needs to go outside of the boundaries is to the extent of whether there's humor to federal involvement because i'm an never responds to that regulation  pieces of the project is the larger project now there and then there's also if you look at in terms of the cumulative impacts of all those i mean one way of looking at it is is the it's can be looked at like a game of russian roulette if you look at the oil spills across one federal property and analyze the risks and say the risks there will be minimal over x amount of years well that's a very different calculation if you if you the record shows that there was some back and forth on that actually the bridge the fish and wildlife service was going to limit the scope of the of their incidental take  statement to the jurisdictional waterways but that would have required ambridge to also go out and get section ten permit for the nonfederal parts and that would have caused a delay so after some back and forth the special wildlife specifically pipeline it may be i'm not there i i'm not sure exactly how that section ten works with respect to nico i would i would think that that if that is an action that a federal action that recall that allows the project to go forward i would yes i would i would think that the fish and wildlife service or the whatever agency is issuing that would have to analyze the the impacts of the whole problem just to make it a little harder what if it isn't something that formally legally is required proposed crosses hundreds of acres of endangered species habitat so there's no question that that would violate the endangered species act they could not build and operate this pipeline without harming endangered species and so even if it was on private entirely on private land that the same would be true there they could certainly build it at their peril but they would certainly be breaking the law in this case by by taking endangered species and the protected habitat enlisted court has any other questions i thank you thank you my name is michael graham here on the half of the federal minutes and with me counsel tables david coburn has counsel for the intervenors a lot to cover so i think maybe i'll start with with the connected actions argument and i do think that the focus of that argument in the district court and even in the complaint where it's alleged in in a single hour in a single sentence is that the federal actions add up to make the federal government responsible for for nonfederal actions and i don't think that sort of style type theory works here where you have a need for compliance for each of the of the federal actions  connected actions doctrine doesn't expand the federal responsibility so nonfederal actions and individually to talk about the verifications of the i don't think even the lesser argument that the federal ac headlines for which i understand you're saying for which national permits are useful but the but the bottom line of my question was and which never had under any other authority i national i've full pipeline need balance and which are that there's some transforms into some obligation to consider the full pipeline and the corps regulatory responsibility is focused on wetlands and this is exactly the kind of project the nation one term if you look at the e p a for the nationwide permit it anticipate s seven thousand nine hundred of these crossings per year almost forty thousand over the life of the permit and so you look at each crossing as a separate in dissin it's a single incomplete project and f within the terms of the permit it works and it's important here to keep in mind that the actual impacts are all temporary except for the conversion of some forested whelan's into immersion well and all of which much more than double offset with mitigation and so the idea that just because there's a lot there's a big impact here i think is wrong what they really want is to expand that and make the federal government responsible for the for the pipeline itself while they're worried i mean every candid about what they're worried about they're worried about spells and you're just you're position is these things are so safe that even when we assume you know tens of thousands  corps regulatory responsibility is is directed that impacts i want to tiriel on the water and oil spills are the it was in the province of a different regulatory agency that has a regulatory approach where you know they have set the standards and the pipeline companies come in and say you will here's our plan we've meet the standards but they don't have any need responsibility so so when you're trying to national permit you're not looking at oil spills in part because the only oil spills you would be concerned about would be those that would pollute waterways and so if there's like a pipeline going over one hundred miles a desert that would be easier for you because it's just not just actually relevant when you're doing a need by analysis from the perspective of the clean water act right i think that's necessary that the focus is what are the impacts of the film materials on the of the corps particularly where you have another agency menu you have like the in the their chemical case from the fourth circuit which is a coal mine case where the corps witnessed the consideration of its impacts to the fill in the water in the in the coal mine itself in all the oakland impacts outside the waters aren't the courts responsibility because they're regulated by the state here congress has chosen not to regulate the location and construction of these pipelines in so the cor district engineer could say you know this is not a situation where we're going to verify that this falls into the nationwide permit because of impacts to cultural resources and so we think we need an individual permit but here there is no allegation that any of these two thousand a very extraordinary case where you have a nonfederal actor nonfederal applicant that's engaging in an activity that by its nature is designed for the direct take the biological opinion is not engaging in federal action because the federal action is occurring downstream at the next stage when the agency implements that and it was only because it was the implementing agency in ramsey that that's that's where the responsibility fell but it's saying that you know for example here you have an incidental take statement that is dealing with the whole pipeline and then whoever is implementing that for example in the verification process it's becoming part of the of the the in our case that the i t s did require more you know in order to get in and look at the pipeline to check out the status of the beatles and the bats you have to build you know one hundred little extra dirt roads to access it and a road along y the you know the consolidation sam in that case i think is the name of it now that's what happened in active but that's not what happened here in the just requires some monitoring it on the part of the corps and so i don't it didn't do anything to expand the so i mean i think ultimately what we're dealing here with is a private undertaking ninety six percent of which is on private land and with federal actions that essentially have no permanent impacts that aren't offset by thank you all of the very brief one issue that i think there is there is some discussion about whether the this idea of all these federal connected actions is something that we raised below or this is a new argument and then it's  t if we did argue that below it's in our complaint and but i think one thing that is important to note is that that once what the district court here did was rule that any cla easements at the preliminary injunction stage the district court ruled that those claims work right the district court needed to look at these notes before you could apply and once those became right the district court has essentially held that it doesn't need to raise in district court the scoping issues we did raise that was an issue from the outset of this case the district court ruled on that and i think that's an error of law they were asking the court to reverse but there are also a lot of environmental analyses i think that the part the district court said was yeah i assumed that the scope of those and i took them into account and you know the depth of them or the actual substance of them was that i didn't need to know she says in her final opinion and so i think that you know you just basically making a discretionary decision to extend you want to challenge those on our substance do it up do it in time case well but your honor once we follow the motion to supplement the complaint with those claims environmental assessments need not be analyzed together with the other federal actions and but essentially that they complied with the present it would give us pause to file a new complaint to assert all of these additional claims after the  district court made such a finding so i and i just want one other they only the point that i want to make is that the the question of whether the army corps of engineers has to look at