four environmental nonprofit environmental organizations who challenge the biological opinions and in particular the two thousand and thirteen biological opinion that was  reflects our challenge the problem with both biological opinions is that they have no jeopardy findings and yet the licensees  licensee a protected from taking from getting less and c is still safe harbor under the two thousand and twelve biological pinion and that's the key point because the condition for for the submission of the final species protection plan which was invention and by that original biological opinion somebody is if you're concerned about the standard review for in the district court now and in fact i'll go so far as to ask you the question why doesn't the government's concession to that effect make that a lot of very obese the moral of this case if we adopted a the bio up it would of appeals which is what you are asking for correct but the issue then becomes whether there is a timely review  to raise our challenge and seek judicial review of the biological opinions an issue in this case the dilemma was that number one the commission had not yet issued an order that would be biological opinion itself will be in effect you are saying we don't think the people's will in effect on one to make the concession that it is made that's that's correct i mean we don't we don't know that the biological opinion is this is a separate independent final decision making of the separate agency the fisheries service and the appeal of the first order which incorporates that decision in granting the license modification and issue here will be the subject of that that circuit court petition for view but the science is the fourth circuit discussion of the hearing concept which first came from the taxpayers case back in nineteen fifty eight which dealt with a different situation that greatly from the in the taxpayer's case that by opposite self in from the controversy involves more than just the for issuance of the order in this case the controversy here is in the fisheries service conditions in a separate no jeopardy finding that doesn't necessarily impact d m modification it further may have to do other things based on a different bio thank you focusing on the question that was the subject of most of the most of the discussion since the biological opinion is an integral part of the first order and was adopted into the order itself section three thirteen  is what triggers all of the requirements of section seven if the agent the action agency ultimately decides not to proceed with its action it doesn't issue a permit or it doesn't issue a license for whatever reason then the terms of the buy operate on for in the what he said just to fit a proposition to statutory language right if you look at fifteen thirty six before it says when the fishery services service concludes that the agency tied exclusively to the take incidental to the agency action now that's not to say that private parties can't cover because as in this case private parties often implement the agency action they  dredging permit or hear them operating license but the i see as it's a statement only exams the take that is caused by the agency action evaluated in the that assumes that there are no other procedural or jurisdictional hurdles under for example the federal power act or article three stabbing or any other issues which fir the primary responded in the d so between first record first licensing action and the administrative records for the biological opinion as judge baugh pointed out at the outset the review proceeds exactly in the same way as it does in this report and that's just to try to wrap up before my time expires i think that's an important point to bring up that court made this court made in a cousin's case and that's there's going to tension between the a p a and special statutory review procedures like the federal power prominently seven zero three seven zero four recognizes that there are special statutory review procedures in certain circumstances that it best particular courts subject matter jurisdiction and that's exactly the situation here we have one of those special statutory receipt provisions and it applies there for the a p a by its own terms doesn't apply so the district court properly dismissed the case for lack  with the government on this position we are not in the same place with the government as to the effectiveness of the safe harbor when it comes to the issuance of a buyout and the real world nation once again that  long as the terms and conditions of that biological opinion are are met and those actions are undertaken it's our position that safe harbor isn't in effect but i also agree with the government that we need to reach that issue to get to the jurisdiction matter before the court today and i'm like in a little time i have to just focus on three questions that the court has raised first in terms of whether or not this matter is in the proceedings before this court there is tremendous overlap between the biological opinion and the first license in fact the very essence of biological opinion is captured in the  licensing proceeding so when we get to the circuit court and there is review of the replies since you know order to determine whether or not they actually say acted in an arbitrary  is that exclusive jurisdiction proceeding might someday be commenced it only says once commenced and when the record is filed it becomes exclusive so i go back to the question how can you maintain th are things that could be done first really important to understand what happens in the issuance of the biological opinion here this opinion is about whether it would incorporate it in an interim species protection plan so if you look at the very action that's being proposed here it's to actually enhance fish protection we're talking about additional upstream and downstream measures to fish passage we're looking at additional studies to protect  also point you to three other quick principles before i close and that is section seven zero three of the federal power the administrative procedures act makes a sessions where there are specific statutory language for traditional review we also know that kind of question between a district court an appellate review do you go to the public course with our final review thank you thank you very much harbor fifteen thirty six protection from take that comes into play as soon as the biological opinion issues the final decision making process of the fisheries service that arguments also suggests a point we made right to judicial review in the district court immediately biological opinions that set forth terms and conditions that they may not want to live with me challenge is arbitrary and could capricious and they should not have to wait what could be a long time for the decision of the commission which because the biological opinion is virtually determinative is probably going to accept  that that that opinion and and so this is art our concern here is that setting aside what may become the move in this issue based on again i dare there does not appear to be any precedent for that we filed this action it was in reliance on the da acre sciences case which is significant because in that fourth circuit matter  the district court review petition was filed before of the action agency had issued its order and that's why it is informative and persuasive than this it's the same procedural opinion and the fourth circuit said that district court review is not precluded in that in that contest and that's the importance of this decision from this quarters that we not have a precedent that tells anyone who wishes to challenge of biological opinion in a in a commission proceed in a commission concert that they have to weigh what could be inherently years especially if the biological compounded the problem that we're parties the fishery service may be insulated from judicial review for an extended period of time while it has altered the legal landscape altered a little scheme for everyone involved  opinion and its expiration then the next consultation will be placed upon a biological pinion that my clients contend was fatally flawed to begin t please don't do any collateral damage to me about other scenarios right now you stand in this case correct i mean yes