the morning counsel morning please proceed may please the court my name is robert fleming i represent the petitioners in a case  that unfortunately hits the interest of my clients against the perception that they do not care to protect endangered species wildlife so i want to say at the start that that is not the case what they object to is being forced to bear a burden for protecting wife that is not threatened any actor artifice of man but by forces of nature so i begin with just the two arguments i want to touch on regarding the commission before i go on to the fish and wildlife service st the commission misinterpreted the endangered species act to give the fish and wildlife service discretion to force a person in this case northern indiana public service company to provide river flows in excess of what nature would that's the argument we made in our brief the commission did not respond to that argument and the service does not apparently contest the argument that is that they had they don't contend they had a discretion to improve upon nature they simply contend that what they did mimics nature but destruction no question there's very little law the only case we've been able to find is a year alabama of the corps of engineers based two thousand and six case from the northern district of alabama that directly addresses the question of whether  endangered species mortality resulting from forces of nature is take within the meaning of the endangered species act and that court said it is not this court should i believe clearly state the principle based on the plain language of the endangered species act that they did authorize the fish and wildlife service to regulate actual artifice of man but not for several reasons and then secondly that the fish and wildlife service is it adequately responded to the expert evidence that your client submit it and there were other arguments but because what the commission said is we don't believe that what social wildlife service did was in excess of what nature would provide but even if we did even if there is yes we are your honor and one reason they deferred was their belief that fish and wildlife had the discretion to improve u do and so why don't we just abort yes your honor and i'm certainly going to address that but the only other point to what wanted to make about the commission before i moved to fish and wildlife is that they misinterpreted and misapplied the regulation under the endangered species act that says that a reasonable and prudent measure to avoid incidental try and make only a minor life's technical assistance letter program what's the same is that they both use the same trigger to establish a and abnormal flow then and they both say that generation must cease at both jams as soon as the trigger is reached so that the for whatever variance or an even missed inflow might result from  in operation the upstream dam went in operation two years earlier so as we speak to today more than ninety years they've operated in what's generally as run of river mode and maintain constant elevations that was true before northern indiana public service bought the project in one thousand nine hundred and forty four it was true before the commission  st licensed the project in two thousand and seven but instead of continuing with a run of river as the commission staff said that they believe that kind of drawdown or even less for drawdowns are significant but i would i wish to put this in the joint appendix but i would refer the court to document number lake addressing what happened when there was a drawdown in two thousand and fourteen the public comment so that was twenty three inches i believe the news reports of the time say nineteen inches and it may be somewhere in that range and the what's important is the comment includes photographs that show what the result of a drawdown of i go through that only to say that a scheme that maintains the elevation as it has been one maintain for ninety five years is not mannerly changed by a scheme that the fish and wildlife service had the authority to impose it and i don't believe that we don't believe that the commission was required to follow it because it's a major  moving to where the real thrust of our so just tell me what it what rule of law are we supposed to apply because here both the commission and the service both concluded person seemingly on its own it was not a major change what is the legal test you would want then you are good but low and they would want us to apply to their history major minor what did you argue below how do we know what's make minor in this world did the same time arguing today that they are radically oppose views one not sure just changes the other it doesn't live with the other it completely changes and that in the end and then the lakes would remain at the levels that they were when that went into effect and whatever came in to the system would flow out of the system and that would mimic nature it was standard wit whether it given all the starting senses is a reasonable interpretation and we submit that in no way can it be deemed a reasonable interpretation of the plain language of the regulation because it is really should be read in the context as language that proceeds cannot change the basic design and other things with the basic design of the proposed agency action is a maintain elevation run o river program with generations well that's you change the basic design if you say no we're not going to run a river we're going to draw down the lake is that changing the fundamental operation not not a major change or more than a minor change when it completely changes the design of the approach i just i'm getting i understand your label here and i'm in your genuine isn't this argument i don't question i'm just trying to understand we have to write opinions right if we were to will say we have to write an opinion we have to write an opinion that would say here's what makes this and your view not mine are and i think we've established it can't be we can go well this is just their point of disagreement because that doesn't make it might or by itself and then you said well you kind of rearticulated the same point saying well for kwanzaa do run of the river turn generation off and the service didn't the best just another way of saying bad this was the point of disagreement they had point of disagreement about this and i thought we'd already agreed that can't be the definition of minor because points of disagreement can be minor to our word and so how do we know that the change in the increment was going to happen is they're going to increase the amount of water going down under one are being released under one scenario and under the service scenario more than they would under the f era so how do we know when a release of water and increased release of water becomes a change of the design of the program since they're releasing water to maintain muscles as best they can under both programs or both plants yes it will lead you to know is that it's not a minor change to take something that's been in place for ninety five years and the muscles that lived through and change it so much that it doesn't exist anymore and we have a completely different program that is drawn down the late use lake for supplemental water but your honor i think this will be in work context wh that that is inconsistent with the text of the regulation in the sense that it can't be enough that anything that preserves the muscles would be a minor change and i'm not saying that at all well i understand that but i'm trying to understand how the opinion is written because st and same purpose rather forever we have to preserve the muscles again is incidental ta right and you're saying that's not enough and you're saying tax a few other things and so i'm trying to translate that i mean what i was trying to understand in this case is why is it so significant that the lake is treated so differently under the two programs your honor just the phrase in the regulations starts off it cannot made changes to the i'm not sure the word is  it is the plain text of the language that i ask you to interpret and believe that we will include that it has no meaning at all if this is not a major change instead of a matter change planned change that to four inches either way and that a major or minor i'm assuming the opposite of minor is major but maybe that's a mistake but let me miner or not suit three inches versus four inches i would say it was a run of river mode with ceased generation to they were going to use like freeman for supplemental water to increase but if a service were to tell me when it gets out that they are using run of river mode you guys have would like to move on to why the forest service is i mean the fish and wildlife services approximation of natural low flow is not only best available science but unsupported by substantial evidence they began by when they encountered muslim mortality downstream of the dam twelve assuming that take was caused by a delta and they chose to ignore the fact that upstream of both lakes and most dams muscle were just as bad in terms of low flow and that muscles there including threatened rabbit's foot were not now if it is happening contemporaneously upstream of this whole project they then chose linear scaling as the method for low flow and it is helpful to understand the sequence of events by which they came to be s g s and said what i hope to determine is whether or not linear scaling is appropriate to used to extrapolate low flows horyn it seems it is traditionally used for flood flows that it's problematic to determine low flows or project low flows with linear scaling and he gave geological reasons why that is the case some stretches of river  losing stretches where river flow runs in the groundwater some are called gaining stretches where groundwater goes into river flow those things don't show up at an average or half low they began to create all kinds of inconsistent sees at low flows so mr pruitt suggested to have moss  there is only a little evidence that they ever did that and i will get to that but that makes sense because they are trying to make a hydrological decision that they are put in charge of this yes your honor i think will make more sense if i deal with that in order but they did take this is the st time when they wrote to the guy and ask him about low flow flow versus haslam now the next three communications took place on the same day may th two thousand and fourteen and mr clark again the fish and wildlife service writes to us vs and said beginning on seventeen august two thousand and ten and continuing through the end of october at least the discharge at aura that's the aura gauge consistently larger than it was a mag the downstream gauge can you please provide a reason for this he wanted to know because it is that's entirely inconsistent with the theory of linear scaling the downstream gauge should be higher but and forty five the day we really don't know the reason but actual feel measurement confirms that it did question does linear scaling apply to the typically watershed answer yes using linear scaling over the over the summers between two hundred and twenty t except two thousand and ten result in no statistical difference between average daily flow so he says he sinks he has confirmed it by statistical analysis of that data but later that same day at three fifty five pm he responds to the hydrologists don thank you i have to say i was hoping for a different answer but i'm sure stranger things have happened at least i know i didn't transcribe it oh well i'll think about how to deal with this the point is earlier that day he had already dealt with it he had done this to school calculations omitting the bothersome data and  and he later some months later said to one of the engineers at northern indiana public service i jettisoned the data from twenty two dollars times how many years was that study for the study cover been that there are problems with that data with the data collection sorry not just the but that not the data per se but just what the data collection that they were told that there was no quality control done on those today and and they concluded the data was unreliable i want but here's what they were to item was a real point of discussion this was the st time we had actual seal measurements at the two stations showing less water downstream during a relatively low flow period and he goes on to outline seriously had but says we really don't know but we do know from actual measurements that it happened now i have to thank you that was a matter of great consternation and discussion at u s g s at the time that it happened that if somebody or the gauges were inaccurate that would have come up it didn't come up until four and a half years later it got not quite that but two years later so and it only came up after jettisoning the data was made an issue by the protesters in this case so i will say that we know other things where they there are other what appear to be intentional rich misrepresentations on other things and in determining whether this is reason or excuse i think the court can take those into account  forty one sided a published scientific article peer reviewed that said just that and was dealing with the typical new river that is later years later than t linear scaling is a poor predictor f ws if they had a reason to ignore that they never offered it and they had to know about it because it was brought up in this expert opinion that was provided to them the indiana finance authority said that linear scaling was biased in favor over estimating what flows the commission staff had drawling just  said i could go on but i've gotten bullet points in the group brief that i was somehow alone chatted about but the question is not whether is it's a difference of opinion but it's whether there is a difference between a scientifically supported opinion and a non scientific opinion because what does f b s have on the other sad there no published scientific literature that would support the concept that linear scaling used to predict low flows there is no we said that both of our experts said that it was argued all along no where during the proceedings and nowhere in the briefing in this case did fish and wildlife ever respond to that they did bring up some e mails that they never could and the federal energy regulatory commission record never discussed during the proceeding below about a phone call phone conversation between calculations we pointed out evidence discovered later that brings into question whether or not dr gahl stor would have said such a thing as is reported in that e mail because he said something completely different later but be that as it may they didn't they had two papers that did not deal with  where you or someone else has published a paper demonstrating that apparently nothing and then yes let me ask you a question and i'm not suggesting it was your client burton  do they indicate what would have been the proper way for the agency to have proceeded yes they did and what did they if you recall what did they suggest they suggested that the best way to mimic the natural flow of the river was to do exactly what the commission's staff alternatives said to did which was maintain the like levels stop  and they did that on the basis in part that one that's this and wildlife didn't have a control measure namely what was happening upstream i don't think well one of them certainly cited that and said it was very poor science not that it demonstrated their lack of scientific rigor i believe is what he said but no that's not that wasn't really the basis it was that they knew from their own studies and from other published literature that the kinds of flows we're talking about the fish and wildlife service all were unusual or common in midwestern river rivers of the same size dammed or when dams and that there wasn't any need to try to estimate something that you could already achieve just my stopping generation and holding like levels if they had a pretty impressive study that simply stopping generation does not make this flow the same as it would be without the dams there it's on as on page twenty of am fish and wildlife since and is in many places in the briefing record but page twenty official out of service brief they have a chart there that shows the comparison between how the river would run for the natural flow if there were no dams at all versus these ones with the dams even if no electricity has been generated so i mean you may have a different view but that was a pretty impressive difference on that chart that's correct and that is all based upon their flawed linear scaling exercise no this is i do not believe natural flow around risk was measured at the one i'm at gage the one i'm at gage upstream is the one that they use they say to calculate what natural flows are our experts said and i'll give you an example look i'm going to respond look i'm i'm just responding to your point that they had so they couldn't do a linear scale and they were still supposed to take as given the turning experts i am not asking you to decide who is right on that but i am suggesting that they are saying that everything should be a smooth line when in fact that's not the way it works and an that's not a way of measuring how are they so if not when you're scaling them what is the best way for measuring whether or not you know how how to maintain natural flow what is the alternative way of doing that measurement not the end result but the measurement well back to the original documents would believe that he's not with a generation stopped oh that's my understanding is that it was well out there on that was i understand i read somewhere wildlife service that being the one retained by indiana finance commission and one returned retained by the commission the two that and the two that we retained all said the most natural flow regime well there are a lot of stuff that's arthur here so that's going to happen but if i can explain to you why those lines would not match up that has nothing to do with a that fish and wildlife service but ignored now they are trying to take slow above most dams and use it to predict what the natural flow would be at the downstream dam and they think it's perfect linear scaling well let's go below the dam and see if perfect linear scaling holds true and and fifty four there is the explanation that the behavior between the over dale and delphi gauges oakdale is just barely downstream from the delphi is a lot less than the flow at oakdale that violates linear scaling and that's and look that's not being influenced by anything except you let this much water as a dam and not that much gets downstream and there are brass showing this data at the pages that i have referred you to the  the time the flow of oakdale is greater than the flow is now five on nearly sixty percent of days in this period for which flows it oh dale or less than or equal to six hundred  the flow at delphi is less than it up the stream is losing flow in the stretch in this ridge so what the assumptions that they made up strain or prove complications of geology come into play when you try to use linear scaling to project low flows and note the trend overall thirty three percent of the time but when you get below six hundred equal to or below six hundred c f s at oakdale dam it's sixty percent of the time the downstream flow is lower what's argued here is the same thing happen in the stretch between when i'm at gage and oakdale some places are gaining some are losing you cannot say that the dam is influencing the flow just because a figure like the one on page twenty of their brief that's what this whole discussion is about and the data now they may they could have looked at that data that he just wanted out about a losing stretch downstream and said well here's why we think that doesn't apply and they might have had a good reason instead they ignored it just like they tended to ignore most anything that didn't fit their theory just like they  less than it upstream or and therefore did not support after b s his hypothesis about linear scaling such arbitrary conclusions is were not mine but typically when representing such a large fraction of the available data that is directly contrary to the claim result is not permitted in statistical model analysis and balanced the most basic underpinnings of the scientific method s in their mission in their zeal did a study that determine what flow they needed at delphi gauge downed train from a nail niamh to that would be minimally protective of muscles thus their words they did that without consideration of whether flows lower than that happen naturally then they work backwards from layer to formula for which they have zero scientific support they misapplied it they jettisoned relevant data and if at all i can say if that activity at the lake and the and the endangered mussels downstream but what's even more important is that the services didn't agree with her and to service found the service found that different  capricious in concluding that a particular d drug down of lake freeman was necessary to prevent incidental tahj because whether or not rd had any responsibility for examining the fish and wildlife reasons for it  considered what was before it and gave an adequate explanation of what it was do under state farm is that your understanding polar bear climbs and had nothing to do with river flow where it still being bound issued under the endangered species act at its risk but that case wasn't really dealing with what i o's in this hypothetical as i understand your  into a biological opinion submitted to st on completely different subject matter and cite for extra stiction and not dealing with the project in question so even if anyone would say polar bear tracking has absolutely nothing to do with river flow and to the extent the other agency is relying on polar bear tracking to come up with its proposal further would nevertheless legally obligated to accept that other position present because i didn't see the supreme court quite to say that quite to say that it said it does so at its risk but i'm trying to give you a hypothetical of an extreme situation yes your  that blindly adopting the consultant agencies findings isn't acceptable the commission does have to at least at least confirm that there is something there that the findings have some grounding i would say that if the commission were to received a biological opinion in this case where the issue was endangered muscles and the biological opinion spoke of polar bears the commission would reasonably have some questions for the service and indeed might not  r that is of course not what happened here is that fish and wildlife was lying on my face for overflow that it was alert it had nothing to do with low flow and it was problematic reason not to defer and again all the evidence that she for a frame of percentage us it also presented to the fish and wildlife service in the service quick was able to consider at all which gave the commission which gave the commission no basis to do anything other than defer let me ask you whether you know as a practical matter when these agencies are dealing with each other and in am a public service commission was involved i mean per can pick up a telephone or send an e mail asking some questions of the fish and wildlife service because it had before the same record essentially the court now including these other two points of view writing on the orders but yeah but yes i do think there is room here for interplay between the agencies and certainly there's a lot of written communication back and forth like following this there commissions initial environmental assessment the service requested more information the commission provided it sorry so that yes all the e mails in this case i didn't see her raise any questions it got the view and just accepted it yes your honor going further certainly further presented its own views twice and the service responded to a couple if the service responded on both occasions the service didn't agree and but that's  obligations which are somewhat different that's not necessarily a surprise well served or consultation all right so that was an opportunity to explore these questions correct yes your hon rehearing stage for received from stationers objections to its decision including some objections to the underlying fish and wildlife service fish and wildlife service all of the commissions still has the duty to make sure it's behaving reasonably and we lie on that biological opinion and so your position is that they don't at that point and that once once problems this biological pinioned because it was predicated on polar bear tracking and not water flow and your position as far court go i think we can do that we had no doubt you had notice that the st time around now experts we showed you six experts let me remind you that say that methodology is wrong and firk says i had noticed that before would it call for a rehearing or would it consult the fish wildlife service and say did you have a response to this when it looked at the biological opinion and see if it addressed it what would follow it for prez for it responds to substantive challenges to the fish and wildlife service that aren't as easy as judge rogers hypothetical proceedings it like you know it as as in further consultation with the service that sort of thing going to go look at the biological opinion record in to resolve this took to satisfy itself that the fish and wildlife service didn't go astray this both agencies in addition to sharing the goals of protecting and edition is sharing the goals of protecting muscles were to work contemplating the best way to explain one of river or nat again your honor i think that the prince's back to the discussion of perspective where we start it certainly from shaffer frames perspective that is more than meyer and initially the camp david commission thought it was possible to have everything it  there i would not want to make representations be on this case but in this context yes your honor it is perspective from st perspective and again for who's looking at st was looking at the at the means and at the end it is not a major change because we're because all we're doing is your is directing the river however i would however deal that if the question is whether if the question has to do with allowing additional water flow the commission has done that and the court has approved it in the alabama power case i did and deferring to the fish and wildlife services biological opinion so you're following it was reasonable as the biological opinion itself is actually flawed and what kind of remedy could be imposed since the only petition for review here is from fox licensing decision which we will have just said st acted reasonably initially the licensing reliance on the fish and wildlife service i know they get to the biological opinion but they didn't do a separate petition for review or name and they're not here as a respondent before us you know when they intervene but what what what kind of remedy would happen in a case like this we thought for got it right initially in the license but you did i didn't hear your question judge rogers what would happen in your two view on reman i would think the st and the service would have to revisit their consultation redo the proceeding from there time but it have well it did have the expert protection as experts views yes your honor fur coat it had those views and for a kid the services opinions on those views didn't have  opinion but they stay out the service is the biological opinion here for for a federally protected muscle species does reflect solids evidentiary support and also sound science and the petitioners arguments based on the i'd also like to address that the basic points that i would like to make today are st that the service reasonably concluded that the operation the dams under the current license the two thousand and seven  license would result in harm or or death to muscles downstream and that's what the endangered species act refers to as take and then the nd basic point that i wanted to make today is that the service rationally chose the linear scaling model to model the typical use natural flow i also heard questions from the court about the reasonable and prudent measure and whether that is a major or minor change and then i also heard john judge millette  referencing the petitioners failure to identify the services order as an order that they were challenging under review and i take it that that question relates to whether the court has jurisdiction to review the service of biological opinion to an agency action with later file means and we address some of the factual basis for kind of unpacking that in footnote three but again we're here to defend the merits of the biological pinion i want to be clear on this council because whatever we hold it could be and then you file a petition for a rehearing in bank or petition for rehearing saying this was not a problem for us and i want to see where you made that argument and when you cite city of coma that doesn't tell me you're making that argument and when you are raising this issue in the context of whether this additional record can be made part of the court's record which seems to me a different context that's all i'm getting then you have a position on i imagine imagine a case where it was a close call and st was utterly reasonable and that close call to rely on the fish and wildlife service is biological opinion but in examining the biological opinion itself a close call actually breaks against the service and it turns out the biological payan is  what's the remedy for extent nothing wrong is done everything right under our opinion biological canyon that is that is flawed then we've argued that the court should review and without big picture and in fact the companies of the company intervened in made that point they're not appearing here to argue that they  species and so without a biological pinion place they do face potential liability and so for those reasons and you know again depending on what sort  do want to address the ira better explanation how can you help explain the when things are minor or not and what that reference point is because i read the regulation the reference point is  the does that basic design locations go duration and timing of the action so that's the reference brantley action here was perks proposal it's called a staff alternative but i'm going to call it the st proposal meeting we actually so i agree with your your reference to the regulation but in our brief we disagree that the staff proposal is the relevant federal action here i think it's it's unclear what you two dot otu and that defines what the action is and it defines action as all activities or programs of any kind authorized funded or carried out in whole or in part by federal agencies and then it and this is the part that's not in addition to reply brief examples include but are not limited to see the granting of licenses so well but i know but the whole i mean has to be minor alternative that's a whole logical opinion is about the entire biological opinion is about the park staff alternative or not it's not about status quo and so i don't understand a hell in deciding whether this reasonable and prudent measure is minor or not we're not comparing it to the entire action man analyzing the biological opinion that how is that not the is it really your position that the action the comparison point whether something is minor is not the act in the biological opinion is not what the whole biological opinion has about that's your position across the board alternatives not the status quo would not jeopardize the species but the st step alternative would result in a tape unless the st step alternative is adjusted by  when you're looking at the regulation itself this is and i just want to in this context address judge sent tal's questions about whether we're quite difference or not we don't think there's any difference required here because we're we are talking service develops the endangered species act regulation for and on major versus minor changes but the service did not offer some sort of interpretation that we would seek our kaiser or chevron deference on it's simply is article four of three and the other is article four of five in article four of three for generally established the lakes that reservoirs would be maintained within plus or minus was some amount of you know play in the joints in terms of how he's operated and at the time in article four hundred and five of the license burke said that the company was going to have to within five year consult this all really stems from an understanding that this was something that the parties would have to revisit at a later date and so when you when you fast forward to two thousand and seventeen when the finally came out their biological opinion this was something that was contemplated all along at the service we saw with the company a company was the one that applied and requested that this technical assistance letter  submitted as an amendment to their license and so when you look at all of that it it's not it's not a major change to the operation of this project to specify how precisely an abnormally low flow will occur an example of a major change to me if the service they come back and said you have to replace your nine hundred and twenty six women because it doesn't you can't regulate flow properly through through these d still is you know i agree with you you're talking about plus or minus three inches in the original license but i would point out that there again article four or five in that original license contemplated further homework between the service and the company but regardless in terms of the twelve feet that was now sort of the worst case you know sort of nightmare scenario and in that scenario you know the service the services goal here was to mimic the reservoirs then you know that the services measurement was designed to track the natural flow of the river so you're talking about a drought then that is upstream that is depleted the reservoirs d and is leaving the mussels high and dry downstream that's not a good situation anyone everyone loses in that scenario but that was never the services goal to you know to affect the elevation of these lakes in fact they the record doesn't reflect that you have some sort of percentage this rock of you know ten feet of reservoir levels so the concerns that that the dishes are raising were not borne out after  and that's a transmission letter for the biological opinion which talks about reviewing the staff alternative and then maybe more importantly on page eight hundred and seventy three the heading is biological opinion and it says description of proposed action in the st half alternative and all i'm trying to understand is i had thought that action that the biological opinion is analyzing is the same action referred in your right referred to  right so that we're right that was in your brief but here they say minimal effects to overall operations of the facility which again seems to be referring to sort of status quo operations of and c p i yes it certainly had more than a minimal maintain that again in article forty five of that original license concept plated this would happen when when the service study that this matter in two thousand and seven when the license was st put in place it did not have a lot of data on the river s came in here that's exactly what's going on here and so it seems to me again the action that's being analyzed has got to be whether as compare and frank said we will thank you and c p i s for coming forward for following up as required and here is our here is what we will license and that license did not allow this significant lowering of the rivers and then for sure while i was there is it a wait a minute wait a minute where and in fact are we got a look at the effect on the species here and that's when you all come in and what you're analyzing is not the original license you're analyzing whether the proposed agency action which is st think our point is that the we we would maintain so the service by regulation is not permitted to make major changes to a project the service when it does a biological pinioned doesn't come in and say you know there's going to be take therefore you need to change your you're not major your honor that's our position these are not this is not a major change to the to the federal action bring a broad and shallow mid i don't think the extreme scenario i don't think the st asked extreme talk you lay should of what could happen here radically is the basis for that and i and i also would point out your honor that if the typical new in a drought dries up he's also making a new forecast of how likely that worst case scenario would be did they say this will never happen or this could happen it's a little hard for us to understand how worst case worst case is happening right or our worst case is it never happened being run in some sort of instantaneous run of river the demons do you have fact the flow to pick new and when they're held to within a six inch margin of course there are downstream impacts that's not you know that is there is a very large body of evidence that the service before that establishes that so the the question is not you know the service is has a very solid record to show that the demons are being operated in a manner that results in tape to muscles downstream and the question is what's to be done about that and you know for staff may have put forward a position that basically maintain that position one of the argument that there were take elsewhere as well that perk ignore it so you didn't have a control and here i think your brief refers to there was a field study and what twenty three team i'm your honor i think you're referring to the petitioners arguments that relates to the indiana study from two thousand and twelve is that didn't study you didn't look upstream and sample mussels above the team to see if there were dead mussels endangered mussels upstream and therefore how do you know that these dams were in fact influencing the flow of the river so the answer to that is that we know that the teams are influencing the flow of the river because of all the other research and study that the services did but on a specific point judge millette alluded to this that the petitioners didn't raise this there are we hearing arguments suggests that they probably can raise it before this court in this proceeding well then i would also point out that they haven't raised they never gave the service an opportunity to set that argument before for a while your honor i want to address the critical point here which is that the service did not have an opportunity to address this because the report that they're referring to it's dr and goes report in it this is an after the fact attack on the services biological opinion and what's wrong with that because the service didn't have an opportunity to respond to that argument  so what should they have done sure they have gone to the fish and wildlife service and file some new proceedings when our court has said they can raise their objections in the proceeding that we're something that this response was going to materially change the you know the result here then they could have raised that earlier so your position would be i guess that they either have to somehow raise it to the service or raise it to right they won't engage with the service on all of the evidence that the service relied on but they do certainly engage and they did before the service challenging what this evidence was looking at and that you are looking at something that involves polar bears not rever so your honor i guess i would start so my point was as to take their take conclusion the service had a lot of evidence that supports its take its conclusion that the p m s operation was causing tape downstream and all right and according to the fish and wildlife service it never examined mussels before the two thousand and twelve drought alright i really didn't know what was happening all right that's in the record and then mr clarke makes some telephone calls and emails etc and he's read about this model and he's told it's mor it was aware of that challenge to what it was doing that's all i'm getting at this is not one of those situations where the st time you learn about this is in the  if you look at the court city or tacoma decision that makes clear that the congress has delegated the task of you know making these sorts of judgments and reviewing the evidence and exercising its expertise  was not going to mimic the typical news natural flow so the service was trying to find the best available way of estimating the flow here ok into a few other things that i think are really important about the linear scaling model here one eight says that a model asked to relate to real world data and that's the service did here no petitions only responses to points of the two thousand and ten data and say well you've you've jukes the numbers here because you pulled that data out i have a couple responses to the st response is that it data is only polled as to the maximum and minimum error bars there it's the maximum and minimum errors and when maximum and ten data was included it is forty four point one percent which sounds really high but of course that's the maximum here when you take out twenty tend at than the maximum air drops to a twenty three percent error was only point four percent twenty four percent and the upper and lower culture or tile errors are two dollars and minus seven point one percent so i'm not a mathematician but it seems to me that this is a  you a couple of minutes here service notice and they had no opportunity to respond to the lack of scientific rigorous rigor involved in not looking at simultaneous upstream mus know our dead muscles upstream of everything including not endangered but threatened rabbit's foot muscles and that is you know and the question we've posed from that that's not fair that's less chart that i pointed out to you but they did an extensive study that showed you can't just look at it that way because the damn some cell even without generating electricity make a substantial difference in downflow so it's not i think it's you to say they haven't even tried to answer i think i've answered it and they aren't even aware of it are aware that it involves no electricity generation your honor may have misspoken and therefore been misunderstood what i'm talking about is they never examined why the mussels upstream were dying at the same time they just assumed now they later did the stuff all kinds of studies but the never  quest and what is it this going on that causes muscles upstream and downstream to die at same time in a drought never they never did that and  twenty seven dollars team letter and supplemental reports critical of the biologic pending it says that's what is written in response to so they had every chance to respond and they said that they said for the st time that they had engaged and experienced hydrologist working in the midwest regional offices of the national wildlife refuge system to review our work particularly page they gave the observations of this after the fact had relatives they got involved but not want did he mention the words linear scaling so he didn't attempt about the use of linear scaling and not once did he address this question about how can you tell if upstream and downstream muscles are dying at the same time from the same drought that made an argument to which they did not respond and they be a national wildlife service that the only thing supporting the funding that incident will take would occur or was likely to occur if the staff alternative were put into place the only thing that supports the issu an incidental take statement is their flawed linear scaling calculations because it is based on levels of flow downstream from the dam that are in turn based on level of flo upstream from the other day on that are based in turns on linear scaling that have nothing to do with love flows so there shouldn't even when we forgive this we argued it during the proceeding were there should not have been an incident will take statement there shouldn't be a reasonable and prudent measure and certainly not one that makes major changes and with that i'll stop it unless the court has