into the microphone will have a recording of what you have to say administrative law and ignore the administrative record and finally because the district court also urged with respect to harmon and the bounds of the equities let me start quickly with the injunction statute passed in two thousand and four in which congress had the record of your money to provide for regulations dealing with the question of mitigation banks and making it easier for me to why the mitigation plan was sufficient other words why you can have the substitution of a certain thing for the cyprus so we don't we don't really understand it wasn't really brief all of these regulations that i'm speaking of that govern the establishment of mitigation bans on the one hand that are heavily licensed regulated and also find a solemn immigration crowd which would be adequate to address projects that may happen in this basin let me ask you cannot ask your question about that yes there are the other side sides thirty three c f r section thirty two three thirty two three c the subsection two and that says that the rationale for the required replacement ratio must be documented in the administrative record for the permit action and you didn't fact that subsection and i have not been able to find maybe you can tell us where i writing i think this is part of the louisiana rapid assessment method looked on where the horrible in conjunction with the louisiana environmental agencies and the e p a have developed a methodology for assessing how to figure out what will compensate for these types of permits under the regulatory structure that was established in two thousand and eight and the air i missing here is and an awareness of the governing law that changed in two thousand and eight and the fundamental point here is twofold it and if i could just stated maybe when it would help clarify the descri just misunderstanding the approach in two thousand and eight became what it's what the agency is called a watershed approach and that has two aspects one of them is this is from three thirty two point three c and at the end of section one it says the ultimate goal of this approach is to improve the quality and quantity of aquatic resources within watersheds through strategic selection of compensatory mitigation sites so you have the mitigation banks right in have approved those and you have license them in conjunction with many of the agencies that's point one point to is compensatory mitigation should not focus exclusively on specific functions like a certain species but should provide the street of functions typically provided by the effect that at quite a resource that is to say we do not focus on the replacement of the tree or the species we look at this suite of resources the functions and values that are being affected by the permits he and we look to the mitigation bank to compensate or to replace the functions and values that are being affected by the construction project so how would the court know what was adequate or not because these have been subject o comment in study by the expert agencies on the one hand the separate set of regulations under three three two point eight which is what i mentioned first has a very detailed structure for how you cite how you license how you regulate compensation mitigation things in these are not things that any private citizen can spring up it's not like i am somebody who wants to open one in the shuffle i a basin and opens it  a there is an inter agency review team this is in three thirty two point eight b two the u s environmental protection agency the u s fish and wildlife service and or fisheries and natural resources conservation service and other federal agencies as appropriate may participate in the selection of these bangs when you're getting to a particular c y three thirty to eat two serves a watershed approach can be used if the district engineer makes of finding a dish of appropriate i don't see anything in a under under section four zero eight and in the second world war there is a determination that the compensation was going to be made with respect to the mitigation banks already established under the separate regulatory framework that i just describe again in two thousand and eight the federal register recognized that the poor and other federal agencies would have to work with locally in cities to develop basically new units of exchange to figure out how to marine fisheries and the louisiana environmental services this is not some fly by night but let me ask you something about look on page nine of the rival of paragraph habitats that is sure similar functions and services that are lost an impact side or gain at a medication side several of the habitats described in section one half above either provide similar wetland punct so but that's the most specific going i could find but i think your honor if you look at actually been listening i don't have their complete in front of me but i think when they say they do it is a community  together and ultimately what we're talking about here is federal agencies all of them that i mentioned to you in the exercise of administrative expertise and the questions are really two fold with a couple expressed all of this in high every time they utilize the l there i am and if you go further into the other i am what it tells you is they start with an assessment of the current quality of the weapon and and see whether it's in good condition but in different sort of indifferent and then you see what sort of impact the work is going to have and they end up using all of these numbers the number from one to three to use various characteristics and at the end of the process they come up with a number in acres as to what it is that can understand it anyway how they are part of that chart to the factors in this case i mean in the end the in the e s a it goes on for pages and pages about the affects only on the  what this actually is that they there was going to be a loss of function of one hundred forty two acres they didn't say that it was going to be exhausting harm when i go on and on about the harm of the aquatic  the agency established was to say we're going to provide for these infrastructure projects by having a system whereby people who are already specialize in peace will make sure that there is no overall  that's affected by the four ojt permit but mostly by the four of four permit to be sure as we wait longer and longer waters will rise and it will become a question of safety and danger or time period i mean i think you know time is  technically the answer to that i think we are hoping that we can make up you know the last time in the basin we have as we explained in the supplemental a three day bit we had separate crews working on other parts of the pipeline outside of the basin and so we could try to make up you know some of the lost time and as we said in the affidavit we had built in a little bit of extra time to take into account of you know the vagaries of the weather in the in the basin so our hope is yes but obviously time is of the essence my mother question as i want to tell ask and saw this major pipeline it was all of that and why can't you elevate the pipeline over this particular this appeal would be moved before it could be heard because most of the damage that we're trying to prevent could be complete before we get there and on the other side of the equation granting the stay will not get this project completed any faster and that's because of the flood situation they will not be able to finish the project on their preferred schedule with or without a stay or so they can work or five weeks before the critical well a pipeline that is ninety nine percent complete still generates zero revenues so we have a affidavit from our expert that says the water is already high it's not coming down till the end of august or later we're at it then you don't need an injunction do you if they can and with no that's not right because they will continue the work in the basin clearing the trees and digging the ditches now there's a question of ice how high water that's a technical question in terms of the permit they are prohibited from completing the project in a couple of places now the test that what you just heard was that it only applies to the levees that isn't correct the four way permit applies more broadly than that and i can get you a record site on that and it applies to four different projects within the basin as well as roughly ten percent of the land within the basin that's a record one five six five that's the permit that says what the project with a four way kermit  covers the course says that's that's about ten percent and i'll give you another record at forty three fifty five so we have a briefing schedule already that's going quickly the briefing will be complete by m enough cyprus to below credits available you agree to that everybody agrees to that so what are these people supposed to do how can they proceed with their pipeline at will at the at the very first sunda middle the very fundamental point here is that a project like this a major crude oil pipeline crossing a place of unique sensitivity cultural and ecological sensitivity is significant it requires a full environmental impact statement and that impacts are significant that would trigger in yasin a more robust consideration of all the impacts which includes the mitigation are there other mitigation options besides out of basin credits or i'm sorry out of  for the project we ask that the permit be denied under their clean water act authority we asked that they consider alternative mitigation they reached a conclusion that there were no significant impacts and they came up with a mitigation option as you heard at length here where there was very little and now we're no analysis documenting the relationship between the impact in the medication what one other alternative others elected officials state agencies you know what's what are you asking for i mean what do you want them to do if you're not satisfied with with the products that they purchased and avoid what they're doing now and i don't seeing a practical solution to this we need to release relief like if you win the lawsuit you get relief you you win i think if we win a lawsuit i think the remedy is it goes back to the deal with that at that time if that's what you're asking for you're asking for supplemental redo right that's that's all we can swear and i've been a spate of long run but there are alternatives that could come out of that process that don't involve yeah that's that's what would come out of a lawsuit and so i want to i want to come back a little bit to where we are with this proceeding which is emergency stay motion it's an extraordinary remedy in the reason that is because it's the trial court that has the job of the discretion of weighing the evidence and testing the credibility of the witnesses and balancing the acting and it's a it's a function that this court in the supreme court has said deserves respect and the district court undertook that function with particular care there was a full day hearing  bit about that the harm because there have been some issues raised in the briefing about the environmental harm and i do want to talk about the mitigation legal issues as well but the flood the flood situation is a very relevant context for this motion i read the next week the river is cresting at one of the highest levels ever i water it is not weeks or months away it's here and that that is important for a couple different reasons there was extensive testimony before the district court about how cutting this channel through the basin and we would carry and distributed seven throughout the basin which had a variety of serious ecological effects and you know one of those yeah they have knowledge that this this is a very significant project that would have to mood of the significant impacts particularly during crawfish season right well i think it's particularly during times of high water when it would it would injunction at a minimum to do that well there's a yes there's an issue of modifying the injunction to backfill in the one mile of trench that's been done that can be raised with this record we would stipulate to that of course we haven't been what the pros and cons of that are and so i would want to consult with their experts on that before i stood up here and agreed to that but i don't think that's something you need to get involved with and it's not what you're being asked to do you're being asked to stay the injunction which would allow them to clear this seventy five foot wide channel through the basin in the next month or two  so if the standard is abuse of discretion the district court heard testimony weighed the credibility of the experts everyone had an opportunity and it is recorded this line of irreparable harm and you've been given nothing that would stay i think it means the stay needs to be denied so let's talk about mitigation so i think that the core issue is the army corps allowing the destruction would you want what did you argue or what do you are going now if the if the tree is being fine and in a different area it isn't adequate do you are you saying they should plant cypress trees somewhere you know you this belongs to somebody else and we can't we can't go in that property and do that well they can stand up and say that here that wasn't part of the administrative process there wasn't a discussion of that alternative in the process instead there was a you had a discussion with with counsel that that was not part of the record below it was never submitted to the district court so it's not an abuse of discretion to the district court to fail to consider a document that no one ever the exact spot in the process where they go wrong with their proposal which is page nine which groups together the six different kinds of ecosystems in the district their argument that all of those are inclined to  that we didn't have any notice at any time that this was the plan the first that anybody ever heard of the mitigation proposal was when the decision was made and the environment analysis released however we did in our comments highlight the need to mitigate appropriately consistent with the with the regulations what could be core repond they made their decision you know they they acknowledge the existence of comments or the way that us set out is that it sort of recites the comments so it explanation all this is not a fact there are no cyprus credit remaining i assume that to be a fact it doesn't mean they can have it the regulations you know again what the violation mean it's just a conclusion it's you exactly get the regulations allow it but they do this at a very high bar out of kind of mitigation is not preferred and it doesn't matter whether it's a mitigation bank credit or anything else it's a very high bar and they space the regs specifically call out you know unique and hard to replace resources as an even higher bill so they need to do more to identify either identified opportunities for  mind which you know we had a suggestion i don't know if it works or not because it was never examined the restoration of the right of way but that would have provided a pretty significant environmental benefit ironically it's a benefit that license from getting rid of you know harm that someone else completed a long time ago but nonetheless it would have provided it even i asked would provide the opportunity to really dig and if it is technically infeasible applies in a couple in about ten percent of the basin and you know that the company's own lawyer told the district court that they had to stop construction in high water and this is what he said in fact you're in for a permit that says that if there is in fact a high water of that occurs during construction we have to stop construction that's a record three three zero three so the water is not coming down any time soon they're not going to be able to complete the project on again you know a project that is almost but not quite complete doesn't generate any revenue so the testimony about moss revenues i think misses the m already past that point anyway because of the flood well if they can't do the work they don't need to be in joy and i want to come back to that because that's that's not right if the if the foreign made permanent only covers ten percent of the base and that mean an evidence or to find a very compelling again that is that is within the special province of the district court to make that finding it's not an abuse of discretion i don't think they've solved that problem with their additional standby cost of keeping the cruise active with the democratization you know with that contract if the cruise demobilize it also have to pay the standby costs so they need to be clear about what the actual daily impact pipeline to remove the piles that were left by other people and one of the astounding parts of this case is that we have a series of claimed under which owning guns on with granted that are contradictory to what they argued in the administrative record if you look at believe a p what we want to get these credits whether it is fifty miles away or two miles away irrelevant that only agencies have designated this band as the relevant depository to counteract the effects of infrastructure proper  purpose of which under the guise of irreparable harm was to come up with an alternative admin record and an alternative version of the law but the fact is from the get go the relevant public knew that there were immediat banks that had been subject to notice and con and there was one designated with this these and there was no mystery as to where the bank was that it was a system file fifty five miles away from the project there was no mystery as to what the methodology environmental community listed after that as an end as as a as a group as of an appropriate grouping to go with our property but then i mean that's the most together as a pine wood savanna community and that's the see it listed below and and so that they they refer to the to the ones that are listed in the parentheses as being grouped together with the with the