may please the court my name is christine ackland seated at counsel table at ten back twelve and together we represent a pal an alliance for the wild rockies i'd like to reserve two minutes for a bottle and i have a clock there and also try to help you thank you was first to your honor by the time alliance received the response from the agency is sixty day notice the agency has had already been planning on and scheduling completion dates for the biological effect particularly in the clone the river biological assessments and then failing to meet those deadlines over and over again and so by the time the alliance received that vague future date of compliance and the response of sixty notice rather than waiting another six months to see if that action agencies would finally cement the biological assessment and the string associate consultation then there are ways and so that's why this court held in that case as well that the chronology of events is an important consideration in determining whether litigation prompted defendants to finally comply with the law does it  boil down to what do we make of the chronology your honor yes it boils down to whether well the catalyst theory requires first that the law that the court determine what the law suits ought to accomplish and because alliance south or initiation of consultation the inquiry into that first step then becomes what determines of action by the agency reinitiate consultation and to that service and hear that undisputedly did not happen for either of us columbia river biological assessment or the land biological assessment and that's important particularly important here because submission of the biological assessment is the trigger that sets the deadline for the service the expiration be to publish a biological opinion in that biological opinion the service ultimately of pines whether or not the agencies action adversely modifies critical habitat and that's why alliance files sealed it the seal was intended to get the agencies to finally cement the violence call assessment to spur early agencies into finally renegotiating consultations and complying with the law and still the chronology of events is that alliance filed suit and the agenc finally complied with the law and your honor i'd like to hear owners i'd like to point out that there are two different biological assessments here the columbia river and the ulama and in the limit the action agencies drafted a quote near final draft of the biological assessment and that that you hear eighty six and that was at the end of twenty eleven and after that after as after at the end of twenty eleven the agencies completely styled and sat on the biological specimen for years and only after alliance files does the agency's finally consultation and complying with the law the agency's point to a lack of a limitation on manpower and that that eighty six as a reason for noncompliance of the f a a but we know that the court's holding an environmental defense energy babbit that the lack of funding does not excuse an agency's compliance with the law know there wasn't your honor and that's what makes it difficult in this case because there was no and ministry of record the defendants filed a motion to dismiss prior to administrative record being submitted to the court  we we see the action that the action agencies exhibited here over and over again in consultation cases and listening cases where the agencies delay compliance with the law and then finally comply the agencies failed to comply with the law and then only comply once the plaintiffs file suit and that is exactly what has happened here  filed a complaint and prior to that the action agencies were sitting on these biological assessments and planning the biological assessments for years and years and once the suit was filed they will biological assessments through foyle education for their requests and they saw that the agencies were involved in extended pattern of delay and only and they recognize that without a complaint of filing  complaint there are likely never going to be a aurion issue action and consultation and that is exactly what happened here and i see that i have about two and a half minutes remaining i'd like to reserve that for about all you may the plan as the plaintive alliance bore the burden of proving that its lawsuit caused the agencies to reinitiate consultation and it presented a simple chronological story to the district court but the district court found based on the evidence before it that the agencies had a plan to reinitiate consultation on the many dams in the pacific northwest that were affected by the boulder trout critical habitat designation and they were marshalling their resources to finalize and execute on that plan and finding which this panel reviews for clear error is not based only on the peters declaration which did stated the land it biological assessment was nearly complete in two thousand and twelve it's also based on two other important pieces of evidence  the record the responses to the threat of lawsuit the notice of intent where the agency said they were going to complete the will and the b s a in two thousand and six and fall two thousand and sixteen which is exactly what they did and the fact that the agencies had reinitiated plan but the difference was that the agencies at the army corps of engineers which was primarily responsible for coordinating the will land at bay be a was also drawn into other matters that arose during that time period then some of those are outlined in the peters declaration they needed to respond to the district of oregon's injunction on the federal columbia river power system biological opinion they also had to respond to the supplemental biological opinions issued by t fisheries service on f c r on the columbia river power system so it was an issue of balancing limited resources by the agency over us it took them four years to balance yes your honor it seems rather inconsistency first there's not enough resources so we can't proceed with the nearly final biological assessment then to credit your argument that things are going on and they're now balancing with other projects and then miraculously upon the filing of suit they're able to complete this so we may have to give clear air review to findings that don't have any  dation here but i don't see where you can make that jump to say that there's no causal connection here between the filing of the suit and the kind of maybe you concl that well your honor i think we would argue that even if there were a causal connection between the notice of intent to sue and the filing of the finalization of the biological assessments that would still be insufficient for agencies an opportunity to explain to would be plaintiffs that a lawsuit so necessary because that within sixty days they did they issued a letter to the would be plaintiffs eventual plaintiffs say and we're nearly finished with this a lawsuit is not necessary we've been working on this for several years this is an incredibly complex action at issue here an action that requires multiple agencies to balance competing congressional objectives to manage water saying the agency's explained that it was unnecessary they were going to complete reinitiate in fall two thousand and sixteen and that's exactly what they did the purpose of the notice of intent provision is to achieve positive outcomes and under the endangered species not to generate attorneys fees and if this court were to hold to the contrary it would create a situation where agency is would have perverse incentives to be reluctant reluctant in explain evidence in the record that presumption shouldn't hold here but they didn't do that they didn't take that opportunity and all of the evidence in the record supports that presumption the fact that the agencies had already reinitiated consultation on several key dns which were named in plaintiff's lawsuit the fact that the peters declaration explained some of the hiccups in the process between two thousand and eleven and two thousand and fifteen and the fact that the notice of intent explained to the would be plaintiffs that they were fall two thousand and sixteen which is exactly what the agency did this court can decide this appeal narrowly by finding that the district or did not abuse its discretion in  evidence before it otherwise an agency needs the agency needs the ability in response to a notice of intent to explain that it's doing its job and i don't want to your argument even though with respect to atlanta met the assessment had been pending for four years that alliance for a while rocky should have waited until september or the fall of two thousand and sixteen to see how things insufficient to generate i don't think you answered my question so let me just rephrase it is it your position that once the agency notified that things would be proceeding and then i think if they put it in the fall of two thousand and sixteen that the alliance should have waited to see what happened yet again in the fall of two thousand and sixteen that's correct your honor that if they had waited a few months there  the agencies were going to reinitiate in a lawsuit was unnecessary there were several you refer to several competing projects that were going on with the yeah i said i also see one bite biting into  but our arguments that even if it wasn't response to the notice of intent if so it still would have been insufficient for generating fees thank you but two minutes back on the clock i missed a lot of thank you your honor may please court matt love representing rosa irrigation district in kind of like irrigation district when assessing whether this court or whether the district court abused its discretion in denying an attorney few motion i think it's really important for this court to focus on the federal government's responses to that while the rockies sixty day notice these responses are found e r one sixty one through one seventy three these responses were provided on june thirtieth two thousand and sixteen twelve days before wild rockies filed this lawsuit on july twelfth or july eleventh two thousand and sixteen so what are these sixty day notices tell us well they tell us for fo the federal nam's the sixty day notice explains that those dams were outside the bowl trout critical habitat and had no effect on bull trout critical habitat yet the plaintiffs went ahead and filed their lawsuit and included those four dams it tells us that with respect to several other dams the sixty day notice explains that the agency has already initiated consultation with respect to those dams federal court dismissed those claims in the plaintiffs not appeal those dams include the dams on the act in the act on base of my clients dams those dams plains sought to enjoin the operation of those dams and correct you're in yakima and in that basin that's correct that's correct and not on the c r p s you understand so but we do have an interest in this in this the attorney fees claim in the sense we have a long term interest we've spent millions of dollars on sam recovery efforts and this lawsuit was and was a distraction it's been an undermines what we were trying to accomplish in the acma basin so with respect to those remaining dams the sixty day notice was clear it says that in the fall of two thousand and sixteen we'll be initiating consultation plans an opportunity to wait to see if that occurred sir they could have brought their lawsuit and their lawsuit would have been right but it doesn't necessarily meet the standard in terms of entitlement to attorney fees which is is there a causal relationship between the litigation brought not the litigation threatened but the litigation brought and the relief of pain in this case there is no clear so the district court decision should be affirmed thank you thank you you have lots of minutes left thank you first i'd like to address judge hawkins question about when the action agencies prioritized the biological assessment there is actually no evidence in the record of when the agency's re prioritize what we know from here eighty six that the action agencies and met that no work was done on the lam it from after twenty eleven and till september twenty seventh which is well after alliance filed suit care is not determinative because the lower court failed to determine what the lawsuit sought to accomplish which is again a mess for a section of the law and then by failing to make that determination the lower court failed to consider the relevant regulatory definition of a renegotiation of consultation and because this court has held that a lower court decision will be overturned where the action agencies are allowed to respond to a six day notice with a vague future date of compliance it would completely diminish the purpose and need of a sixty day period and that's because first plaintive they did say fall two thousand and sixteen right so after four years that's a fairly specific date isn't it as you know now after four years of delay but it is a specific date in which they say they're going to  in regards to the federal columbia they submitted that they renegotiate it december and so that's kind of a gray area whether that's fall or winter i don't know but it doesn't and i sense and where you live i guess so and i see my time is up my complete this thought plane just would never know exactly when to file suit and then once they did action agencies would be immune from citizens  immune from liability of attorneys fees and that would completely eviscerate the catalyst ferry and also diminish the citizens you provision which allows the citizens in united states to hold the government accountable for the laws that congress enacts thank you the case just argued alliance for the well rockies versus army corps of engineers and the roads that you're geisha in district is submitted thank all council for your argument