fifteen and the community groups will take this the second five your honors the ib c has two main grounds for seeking reversal of the lower court broadly speak first and principally we seek reversal because the district court should have set aside and invalidated the record of decision the rod of the federal highway administration as inconsistent with the national invent environmental policy act nepa and the administrative procedure act the a p a second however we do also argue that even if a court is not reverse and remand to the agency the court should reverse to district court for denying our motions to supplement the record or to strike the record because of its deficiencies i intend to spend most of my time on the first point your honour's but i wanted to recognize the second because there are portions of my argument which may touch upon some of the excluded documents that we think confirm and go to the heart of the flaws in this process moving to the nepa and a p a arguments your honour's niekro requires a fully informed and well considered decision based on information that is given to the public and the decision makers with that overall goal which has been repeated in many courts including the supreme court it requires a series of specific things including number one that the purpose of the proposed project be clearly stated and explained number two that an environmental impact statement be conducted with  information and presented to the public and decision makers before a decision is made and not used as a justification for decision has already been made third the n regulations say that the heart of that environmental impact statement is the consideration of alternatives what other actions could potentially fulfill the general goal and what would the environmental impacts be that is the down they did not consider the reasonable alternative of a privately owned and constructed new span to the existing in bastrop bridge which was obviously reasonable and the most reasonable alternative because number ranked number one in its impact on protecting the natural the natural environment number one on its impact on the local community and neighborhoods number one on its consistency with local planning that can be found in the record at trick one nine three eight no one disputes that and yet it was eliminated from consideration your honors as these requirements of people which also i would go on require the consideration of a no action alternative what would happen if the government does nothing but take into account what others are predicted are likely to do and fifth nepa requires that the information presented be of high quality and be a scientific analysis of the actual data the agency in this case violated all of those nepa requirements stated briefly it made an undisclosed and unexplained to the public decision to commit itself that the new crossing over the detroit river had to be publicly owned and could not be a privately owned twin span to the ambassador bridge even though the ambassador bridge has been privately owned and operated with great success for over eighty years and is well maintained and is subject to oversight in a way control but is privately owned in addition they then later instead of saying that the reason they eliminated the ambassador bridge when span was because of their commitment to private public ownership they issued a decision document saying that they were deferring to canadian objections to the environmental impacts of the transplant but there is nothing in the record showing that canadian analysis and nothing in the record showing that f h w a did any independent analysis if we if we agreed you would reverse that and what's going to happen judge that i apologize i'm not sure i heard the question  we assume we agree with you and we reverse that then what happens your honor if you reverse and remand to the agency the we would submit the instructions to the agency should be taken to account all reasonable alternatives state your real objectives plainly so people can evaluate it and study from scratch in other words i don't know that it's completely starting from scratch or they start this process started in two thousand and three didn't it they announced their intention in two thousand and three but the proper work for the yes i think began in two thousand and five or six i think they that but by the same token on or even under their traffic projections which we think are flawed the time the  capacity of the traffic levels do not reach capacity for the existing embassador bridge until two thousand and thirty five that's in the record we think it's much later than that if ever based on what we think the traffic projection should be but it's not like this process has to happen immediately there's plenty of time to get this done right it's a multi billion dollar project it's going to impact thousands of people maybe millions of people and it should be done right and here it wasn't done right and they eliminated from consideration the principle candidate for an alternative to what they are proposing doing and therefore the public was deprived of reacting to that and saying why are you choosing a publicly financed bridge that is going to be worse for the environment worse for detroit worse for community impact when there's a private company that desperately wants to use its private money to build the twin span that we better figure out of the private company could build the second bridge what's the assurance that a private company your client could build the second bridge you're on to the private company has been trying to build that second bridge we are seeking we have one will permit approval needed to be able to do so from the coast guard which we think we are legally entitled to right now but but the issue here your honor and we've been and the state department confirmed in this record document one two four five one two that we have a right we do not need a presidential permit we do not need congressional approval we have a right to build that new span and we're trying to build it and the only thing standing in the way right now is one regulatory approval from the coast guard that we think we're entitled to receive so but the issue is and if they think there is something that prevents the bridge company from dealing its new span then facts what needs to be explained that's what needs to requires an easy full airing of what the analysis is but they're not relying on some analysis that it's that we could never build it they do say the judge cone said it's not in the red but judge cone said well if canada says they don't want to then who are we to disagree the f h w a has to bow to that and must abandon any consideration but the nepa regulations say in fifteen hundred point fourteen and the questions and answers that the council of environmental quality put out on that requirement which are found at forty six fed reg eighteen ot six and eighteen zero to seven the alternatives all reasonable alternatives must be considered first of all and second if the agency can't limit the alternatives to what they want or what v a think is politically feasible it's not a question of what's politically feasible it's what's economically and now it'll be two questions and you've had two interesting words used there one is all reasonable alternatives and the other is politically feasible i understand politically feasible in the domestic context where you say it's not for the agency to decide whether the senate will do something or the house will do something else are there any cases that say that includes international that they should take no account of whether something can be done when other nations and similarly is it a reasonable alternative if a necessary foreign nation will not participate is there any lead or we're just going on general definition and judge box i'm not certain there's any law and there's none that i can cite to you right now i think we did our best to look for that in the briefs unless it's in the briefs and i would conclude we didn't find it on point but but of course that means there's no law going the other way are i there and this is a unique circumstance in the following sense this whole project was a partnership between the f h w a michigan d o t and the ontario and canadian transportation ministries they were all in it together from the beginning and in fact and therefore they the applicant here really is in sum and substance canada and the regulations are very clear and again to his forty six fed reg eighteen zero to six no twenty no use the word applicant here i mean because need you know isn't about having a person applying for a permit it's a federal agency doing something i understand judge box i think the reason the council of environmental quality regulations use the term applicant is because it is often the case that either an agency or a private company is seeking a permit term and right and then that triggers  it but it's also triggered obviously when the agency simply decides you know exactly to build a dam or whatever but i take the meaning of this regulation and the commentary on it from c e q to mean whoever is trying to do the project whether it's a government agency or a private company that need to permit that triggered the need to review you can't limit the alternatives to what that person wants and they certainly can't define what they want so narrowly that eliminate is there any case or even administrative proceeding that you can cite the treats of foreign government as an applicant your honor i don't think i have anything to say to you that deals with the specifically on point addresses the foreign government aspect ok that's what what we do have is case law saying which we cite in our brief save cumberland mountains from this circuit citizens against burlington from the d c circuit of the simmons case from the seventh circuit all of which say base my case not to be confused with the president's name cited in our briefs i think is extremely instructive because it says it says that even if the goal has been defined really narrowly when you look at what are reasonable alternatives you need to look at the general goal not the extremely specific goal and what i'm saying is they say it's now revealed but it was never disclosed in the process that the goal was a publicly owned bridge and quite honestly to go from canada it was a publicly owned bridge to drive the privately owned bridge out of business i can support that in a moment but even if you accept it even if that had been disclosed and had been explained which would have made a huge difference to this process even then when looking at what the reasonable alternative is you shouldn't limit yourself to that narrow goal but look at the general goal a new bridge ok well what are the alternatives how the most obvious and most reasonable alternative if you have the existing bridge that's been there eighty years privately owned and they have been trying for a decade to build the twin span to upgrade their infrastructure with respect to that building a minute ago you had said that you had all the permits except this last one from the coast guard does that include approval from canada your honor i would love to answer that to be clear this is something we sought judicial notice on that in a motion that was denied but the state of play right now with leave of the court is a draft has been issued by transport canada finding no significant environmental impact by our proposed twin span we hope to have that finalized within the next month or two i believe by november i was told and then it's one other approval that we have a dispute whether we need or not in canada under the so called international bridge and tunnel act from the governor and council and then were approved in canada so the less that we because obviously you need some approval that bridge can't just leave we absolutely recognize that the you can't build half a bridge and so in any event with limited time i'd like to quickly touch on these remaining issues that we have raised in our peel on the elimination of x twelve document fourteen eight zero two is the heart of it that is where mr steel eliminates x twelve from consideration next twelve exactly the same as the second span yes and he says that in that document in fourteen nato t equates them and he says it rang very high on the u s side but we're going to defer to canada he says nothing about the true reason which is that's because canada doesn't want to public a privately owned bridge and is out to basically appropriate the masseur bridge he also doesn't say anything about the ex post justification the f h w a's now relying on so called redundancy that document is there for very important secondly this court and mr said you cannot eliminate an alternative based on something that it is not in this case the canadian side assumed there would need to be these massive new plaza they first said twenty five acres then they said thirty five acres then they said eighty acres then they said one hundred twenty acres this is noted in our briefs that it was not a correct assumption there is already a plaza there they never explain why they need a new plaza they say well if it's government owned we can't use your private plaza that's not true the plazas on both sides of the ambassador bridge are own are operated by customs officials from the respect governments so it violates that principle of minister on the no build alternative your honour's it's a shell game and a catch twenty two they acknowledge in documents sixty nine paragraph one thousand that the no build should include the new span yet when they go to consider that they consider either the new span or the old span but never both together we made clear this is the catch twenty two we had the bridge company made clear that we didn't think traffic w necessitate ten lanes because we think the traffic is way overstated if it ever did we made clear repeatedly to the agencies that we could with minor modifications at all ten would be open and you'd have the full ten lanes they seek to accomplish my time is up i would like to say a moment one brief thing on traffic or i can wait until rebuttal your honour's there's one or two points on traffic not made in our briefs i would beg leave of the court for two minutes to complete them we certainly have two minutes it will come from your rebuttal time that's fair enough that i give counsel an opportunity to respond on traffic v the data is undisputed that traffic levels from one thousand nine hundred nine to two thousand and four were declining over the ambassador bridge that's not disputed the f h w a produced an expert report showing that for some reason in two thousand and five it was going to turn the corner and grow every year by two point seven percent for the thirty year horizon fine that's their expert methodology doesn't really we think it's wrong but we're not here on a battle of the experts what i want to panel to know is it was declining before the projection then before the e i a s is not until the end of two thousand and eight and guess what in two thousand and five two thousand and six two thousand and seven during that three year period the traffic continued to decline so the error was pointing down not up declining by three percent a year not growing by two percent a year that is not a battle of the experts that is a willful disregard of the actual data it is we submit more egregious than what this court reversed in the mr case where the snowmobile prognosis of the national park service was reversed because there was no data supporting it here you have actual data contradicting it and the the agency knew it was vulnerable on this i would like to cite the court to drik bates number one two nine four one eight in which the point man for the f h w a on this project jim question steiner i was asked what was reporting what the most vulnerable areas were for the project for nepa review and in judicial review this is in two thousand and seven he said two things first the purpose a need especially the need he acknowledged was questionable related to that bullet point two in that document for traffic projections they knew they were vulnerable at the bottom of the email he said i think you should delete this email we don't want to being forced out it won't be helpful you know i was with them i will the community in del ray was the preferred alternative it was preferred over other communities that are not poor and that are not minority communities and i submit that was no accident if h w a violated reaching the conclusion that it wish to reach much as mr hume told you about it he explained some violations and i adopt his arguments but i'd like to point out some other further arguments which illustrate the violations of need that were committed by the defendants over and above what you've already heard about federal highways violations extend to its improper handling of environmental justice concerns as explained in the community brief soap in the community groups opening brief said pages twenty one and twenty two federal highways decision to include environmental justice review in its analysis expose that analysis to review on environmental justice grounds and rules executive order twelve thousand eight hundred ninety eight and federal highways order six six four zero point two three eight both instruct that the agency must identify and avoid disproportionate impact on environmental justice populations such as those in del ray by considering alternatives the defendants failed to do that and they failed to take the required hard look at the environmental justice considerations and the alternatives what alternatives should should have been adapted thanks for that question just out the alternatives that do not involve del ray the more affluent and wider communities represented by  options x one through x nine which will be a fluid people don't have any rights but when already people do know you're gonna know what i'm saying is in order for the analysis to be valid under environmental justice doctrine one has to consider an alternative that isn't founded in the bad part of town the purpose behind e j is not to put every big government project in the bad part of town because if we allow that then that part of town will be destroy in the wealthy part of town is a it's going to be someplace right that's right and they're going to have to appropriate to land it where the period has to be a lot of appropriation of land here of businesses and  alternative as mr hume explained would have disrupted any communities then we'd have an expansion of a bridge that already existed and no one looses but if we had to have it in a new place that's fine but it should be fairly selected where that place i've been listening to you for three or four minutes and you've made a lot of result oriented points we ought to be fair it ought to be and not affect these sorts of people but isn't the whole point of as every professor in every treatise says it's not a result oriented it's to understand the considerations and so if they correctly state this one will affect four thousand vietnamese this one will affect four thousand jews then the decision is not in the i mean even that environmental justice were before us the choice isn't before us is it no but i don't to stated as quickly as i can judge boggs if it community has to be sacrificed in order for this bridge to be built and i'm not sure that it does because of the no build alternative but if a this election has to be able to stand scrutiny underneath well the so let us know doesn't the document the study has to swith stand scrutiny underneath but the selection has nothing to do with  and that the law yes just ok and neither the draft environmental impact statement nor the final environmental impact statement allow us the consideration of alternatives when environmental justice community is stood alongside another community and we see that there are some unique problems in the other communities are you saying that they didn't say things right in the study or simply that they didn't find another place to study that would have less impact on minority i believe the second years before the environmental justice analysis was performed so there were no alternatives left so even if x one through x nine were limited for good and sufficient reasons they should have been resurrected for environmental justice concerns at least one your honor as an illustrated alternative to the idea of founding the project in the environmental justice community and oh i beg your pardon good afternoon may it please the court my name is fifty and wang and i represent the federal highway administration before i begin i would first like to thank the court for postponing argument on account of my knee surgery we really appreciate that  appellant's pick out portions of the record to paint a picture of highest but when we evaluate the record in its totality it's clear that the agency did not predetermine the selection of the delray site but instead analyzed and ultimately rejected other options including the second span because they would either not meet project purposes of enhancing transportation capacity and national security because they would not be feasible or because they would have other adverse impacts including impacts on minority and low federal highway administration by a candidate who's going to be the cost of this project i believe it's a combination of all of the above your honor so the federal government will be putting forth federal funds and ordinarily with with federal and i would want to double check this is that the funds for things such as land acquisition and mitigation measures and all these things come from the state including with matching federal funds and also canada has actually offered to pay will first address mr garcia's environmental justice concerns the agency engaged in an extensive outreach to ensure that the residents of del ray were informed of and had the opportunity to comment on the project public workshops were held beginning in two thousand and five we handed out thousands of flyers door to door to businesses and residents informing them of public meetings and the agency also opened a field office in delray to provide information the agency also distributed materials and held meetings both in english and spanish and respond and in response to the comments received the agency modified the project to mitigate impacts to the community council that's very nice but if you had done  it would have been attacked under under the executive order underneath but not directly under the executive order your honor which as the order itself states does not create separately enforce rights however what the executive order adds to the need for a process is sort of refines what people r t requires which is consideration of impacts the human environment so can the executive alter the legal obligations of a congressional statute in other words it's almost the same question i asked your your colleague if if before the executive order nepa is satisfied by saying this will affect four thousand people this will affect four thousand people is it then legally obliged afterwards to say these are four thousand vietnamese these are four thousand jews under the executive order the agency would be required to as part of its analysis look at specifically impacts to low income and minority communities and so in as appropriate  looking at racial demographics and income demographics and neighborhoods in terms of evaluating the different alternatives where you are going to be executive order again required in what sense that means the president can fire the administrator if he doesn't do it but does it mean that a court can look at whether the administrator did that i believe it's the latter granted that what it does is it refines the analysis and so while i not the executive order does not create a separately enforceable right and so it doesn't in and of itself enable the president or the court to invalidate an agency action however what the court's inquiry is and as it always was under analysis is whether the agency took a hard look at all of these different aspects of the executive order refined that analysis by saying you know you're looking at impacts natural resources to wildlife toxic sites and the human environment as part of the investigation into the human environment also look at and particularly impacts the low income communities impacts to communities of color and it's the as the executive order itself states since striking federal agencies to identify and address as appropriate these adverse impacts mr garcia speaks of the down river alternatives as being improperly alleges that they were improperly eliminated from review but that is not the case as a district court found in us the record demonstrates in fact some purpose and need of the project those communities actually have larger concentrations of environmental justice populations and so it's not true that the agency didn't consider these impacts and also it is  as the agency determined there was unfortunately not really an alternate that would have no impacts a community getting all can you address the question that's been raised by your adversary that there was an initial decision to proceed with public ownership even though the tory bridge owned the existing bridge privately owned a bridge and apparently wanted to go ahead on their own to develop another bridge so what supports the proposition initially made that public ownership city in fact lists seven criteria for consideration that the agency applied in looking at the different alternatives and these seven criteria were protection of community characteristics maintain consistency with local planning protection culture resources protecting natural environment improving regional mobility maintaining air quality and constructibility nowhere in this criteria that the agency applied was a requirement for public ownership that it ended up being the preferred the agency did consider four alternatives proposed by the private sector these are detailed and in our brief and also in the final yes but it included the second span proposed by the bridge company and also a proposal relating to the detroit windsor tunnel and so what you called the second the you did consider is this the same as x twelve it is your  turning to the bridge company's arguments they they assert that the second span was improperly excluded from consideration but that as the record demonstrates was simply not the case the way reviewed all of the pertinent documents including analysis provided by the canadian agency and determined th analysis correctly identified significant community disruptions and environmental impacts of development of an expanded plaza and rebuilding of the connecting roadway system on the canada side and so that was one reason but not the only reason why the second span alternative was rejected in fact the agency also found that not only were these impacts on acceptable to canada's perspective and clearly building half a bridge is not a practical option  in addition to canada's objection the expansion the second span would not address issues such as system redundancy and the national security concerns that the agency was looking at i'm a little bit concerned confused about the extent of the comedian opposition there because looking at it at the briefs it seems at least from your side of the picture that the there was opposition on a couple of fronts environmental impact as well as environmental justice but your adversary here says that  canada is fine with it and they really think that they only need is just one more permit approval if they get the coast guard one and they'll be able to build the bridge right exactly to that point in canada will be perfectly happy and i'm having some trouble figuring out what is the case yes your honor the study that that's households referring to is actually a study that post states by several you know it was a study that was i believe published earlier this year and it clearly post states the record decision that's on review before this court at the time the agency was making its decision and going through the draft finally i assume comment process canada had expressed it opposition to that second span and so that's the record that the agency was had in front of it at the time and made its decision and subsequent analysis by canada and as we set forth in our  opposition to the motion to the motion for judicial notice of the report that can dismiss actually considers a project that's that's different than the second span and so that's i believe that not only is that not part of the record it's also not determinative of the agencies about here and to a library down that your honor the reason why the second span was also found to not be the preferred alternative and this is on page fourteen three four three of the record it failed to satisfy project needs including efficiency via freeway to freeway access and redundancy which means the adequate  provision of adequate alternative pathways to maintain the flow of traffic in case one road segment is unavailable and the ability of the remainder of the system to handle that additional traffic and so because the expansion of the second span would not provide those additional connectors and place customs inspections pass certain locations it was rolled out as an alternative with respect to the canadian position i know sort of heard what you said i wasn't quite sure that i integrated it all were you indicated that there has been some change in canada's political position since the record of or were you just indicating there was some difference between what canada rejected and what your adversary claims they're willing to accept now your honor i do not believe that canada has necessarily change its position in the draft environ draft canadian environmental assessment that council was referring to is just that it's a draft report of a different project and so i there's nothing in the record and nothing you say it's a different project because how is the draft a different from the alternative that you rejected i will have to double check and our opposition papers to this but i believe that it considered a different number of spans the bridge and it also did not consider the need for america the american side of the project in terms of whether the customs possibly moved or expanded or any of the connecting roads and so those were all reasons why where and how it would go into canada so does this project there now pushing go into a different place in canada i'm afraid i don't know the answer ok that's fine go ahead  use your time your way thank you turning briefly the council's reference to the fact that the second span alternative was considering a six band vs a ten span bridge the the agency acted in a reasonable manner when it took what was at the time the only official document that the bridge company had submitted which was this draft environmental assessment that described the second span as a replacement bridge and noted that once it was constructed the existing bridge would be taken out of service to perform repairs and then afterward used for things such as pedestrian and bicyclist amenities and so that was the official document front of the agency and so it was entirely reasonable for the agency to rely on that characterization  of what the second span would be used for and whether the existing bridge would be taken out of truck commercial truck use but even if the ten span the ten span bridge was an option b the agency actually looked at an alternative that would've involved an eight lane twin bridge and that was found to either overload the existing connecting road or to have an acceptable impacts if the connecting roadway w expanded and so because of that the agency concluded that it was confident that the tense ten lane twin bridge would have similar but greater impacts and thus was rejected as an alternative and this is on page sixty nine one three of the record and so in any case whether six six lanes ten lanes the agency proper properly looked at the evidence before it and determined that these were not the preferred alternative your honor if if you look at the bridge company's complaint they discuss the poaching of revenues from the ambassador bridge and their briefs on appeal discuss traffic studies and public versus private bridge an ownership these are not environmental considerations and at the end of the day is trying to do is to use an environmental review process to vindicate their economic interests and that is not what mi bo was intended to do and that is not they do not show on the record that the agency abuses discretion in considering any of these issues in considering the alternatives and defining the need and purpose of the project in choosing its traffic methodologies to address council's discussion of the traffic studies in the data the agency acted within its realm of expertise and finding that the data provided by the bridge company would not aid in the production of traffic trends this is on  six eight of the record the agency explains how the data projections made use of earlier horizon year and do not account for trucks larger size and in any case even though the two thousand and eight numbers were lower than anticipated the two thousand and seven data that the agency the actual data that the agency about that was within the lower range of the forecast modeling that the agency used and so based on that the agency reasonably concluded that there was no need to rethink the basic assumptions that underlie the modeling process in this technical analysis is entitled to deference and the bridge company is wrong to ask the court to substitute the company's opinion for the agency's expertise here believe right now the project is in the process of acquiring the needed right of ways but no certainly no ground is going to be broken any time will procedurally could could it go forward before this court can potentially supreme court review of the of the f b i s yes your honor because they're the record of situation with respect to the nepa process is a final decision ok so once the rod was issued you could go forward and thus there were a stay of some sort or an injunction if the project itself would not be able to go forward your honor because analysis is but one component of the necessary legal analysis and per acquisition of permits and other requirements that have to be met before a project can proceed and  i think for example because it is a cross border project state department approvals also necessary and so these are all even though the record decision is a final document us to the need a process it is not final as and you know it is by no means the last hurdle before the project can proceed and finally to respond briefly to the bridge company's contention but this report should have permitted supplementation of the record the lower court process these motions the documents agency with issued the record of for this project and quite simply there is a as circuit courts have held including this court there's a presumption of your honour's to conclude this is not a typical nepa case because decodes arguments are not about whether the agency has considered the environmental consequences of the project but about whether the agency has satisfied concerns that the project may take away from their revenue source by diverting traffic from their private toll bridge debate and the community groups accuse the agency of bias but that is not borne out when we look at the record as a whole has developed a robust record over the course  several years including a notice of intent that was first published two thousand and three culminating in a final year in two thousand and eight this process entailed extensive public involvement and produced hundreds of thousands of pages considering project needs and feasibility including the need for redundancy traffic analysis impacts on air quality noise what wins in endangered species cultural resources as well as the indirect and cumulative effects of the proposed project the alternatives that plaintiffs discuss were rejected because they would not fulfill project needs or because of adverse impacts including impacts on other neighborhoods with low income and minority communities and indeed the one of the alternatives that council discusses  while the x twelve are second span alternative did rank well on some factors that actually rank quite low in terms of regional mobility and it ranked very low in terms of air quality and cultural impacts and so those were the reasons t supported in the record why those alternatives were considered and ultimately rejected f h w a took a hard look at the environmental impacts including impacts the community of del ray the agenc our response to those comments you can see actually modified aspects of the project to mitigate impacts to the community the selection of the preferred alternative was the product of a reasoned process and a face to not abused it discretion in identifying the direct project as the preferred alternative we respectfully request that the lower court's decision be affirmed if your honour's have no further questions and i think we do not thank you counsel you i would like to begin with counsel's response to the question about the commitment to public ownership first i would like to note we made this was our first legal argument in our opening brief that they had improperly pre committed public ownership not disclose that not explained it in the f h a response brief they say precisely nothing about that argument i appreciate the court's question to counsel today the answer is they didn't make such a pre commitment that's purely fans of all we're making it up that's just so we decided it was erroneous and set aside so that what happens next but i i'm i'm i'm actually use so for the purpose of responding there we  a with instructions to be clear about what the pre commitment and purpose is and to study the analysis the alternative of a privately owned twin span because the need for regulation say even if it's outside of what you want you have to study it if it's a reasonable alternative and that and the privately owned twenty and in the meantime your company can build their second bridges that you place your honor they would say we're free to go for we are trying to go forward and by the way the one permit remaining as a coastguard navigational permit which should be ministerial it's not coincidental they're fighting us in court over give i'm just trying to get the clear picture and we will reverse and remain you build the second bridge we will i'm i know i know i'm just trying to get a clear picture of the future here yes and if i wanted to you if the dry f d a the seeds through whatever canada's analogy about which i have no knowledge of at all  exactly i mean there will be those issues but it the at a minimum what we're saying is if you reverse they will present a full nepa study of what their project looks like versus our project yes we'll proceed on our project if we can get these few remaining approvals which we think we should be entitled to receive but i do want to address the response that you know need any approval of michigan or our united states  approvals the build the second span the only remaining approval we need on the us side of the border is a coast guard navigational permit for a bridge that is identical to the existing one in fact has less navigational obstruction so it should be a no brainer ok thank you your honor has it is true that if you read the purpose and need of the d i s and the f b i s it says nothing about a pre commitment public ownership it is true that if you read the seven criteria it doesn't that's what we're complaining about it wasn't transparent but they do admit it at the end of the process when it's too late and they don't explain how important it was to the pot to the process drip number one for three to six in a section called governance in the final environmental statement it says the partnership is quote committed that the new processing will be quote publicly known in a q and a at trick one five eight three two it says the partnership is committed to public ownership for the new crossing what it doesn't say is when was that commitment made and what influence did it have on these for that though that put those pages aren't an admission as you just stated where's the admission  admission your honor is in two thousand and four for documents two in the record two not on the record let's stick to the two in the record as to when the record i want to come back to be added to two in the record are dreck one zero six seven eight nine and drinks up zero zero five four six eight are give me that number again the second one the second one is drinks sop because it's a supplement record five four six eight thank you in that document you will see an m dot employee responding to the canadian guiding principle that they have articulated of choice and market competition saying this seems quote clearly aimed at the ambassador bridge and she says initially they resisted quote in the current federal environment private sector participation in the transportation system is not necessarily a bad thing why don't we let the ne process run through this she says in the district court we asked court to include in the record two emails from that were from the same people who are e mailing in these to andrew shea from transport canada who was their point man on this partnership with am dot an f h w a she sent an email right before those two in october in which he forwarded the proposed governance system and was told by his colleague i think superior that quote the real option is to buy the interests of both cross the colleague superior at it doesn't sound like she's the big boss if you don't even remember her name she may not have been but the big boss sad the real option is to buy the end of the boat if you don't said big boss that's on the canadian side yes but but they were telling their partners in this trip partnership what the governing principle should be and to the earlier question canada is paying for this project they were driving at and they say quote we might be in a much stronger position to negotiate a we should have a guiding principle of choice and market competition they all know what that means they say you mean no the ambassador bridge owners don't get to build their twin span we're going to eliminate that and they say in an admission in document thirty seven dash three in the district court record docket number thirty seven exhibit three the m dot employee is quoted as saying in a report in an e mail that canada writes but quoting amdocs they have quote grave concern with the government's principal quote the principle implicitly precludes the ambassador bridge from going to make sure what you're reading from this is an exhibit in the district court record thirty seven desh three which is a document written by a administrative record but it was in the district court record and we could we can read it in the district court record absolutely doc thirty seven three and by the way the other i read from about driving down the price is thirty seven dash to both of which are documents that the bridge company tried cause he can expand and show if there's reason to believe there's more background needed to evaluate the agency's decision exist before or after you rule before or actually i think simultaneous we asked we had crossed motions and they had a separate decision  this in any event if i may just finish the thought of my time is up but if the court will permit andrew shea says in this document thirty seven three this principle implicitly precludes the ambassador bridge dot quote evade this action in their words he writes quote fatally flawed the e a a process faith admittedly it from the beginning this insistence from canada for the privately owned twin spand not be considered would fatally flawed the process the rest of that email chain is for your r s i submit worth reading it shows the back and forth the desire to be more explicit and the higher ups say don't be more explicit put stick with the principle to the questions from judge bogs about the process of nepa what's happening in canada i would simply submit this point politics change public opinion changes the purpose of nepa is to disclose the information transparently to allow better decisions to be made fifteen hundred point i think one c of the need to regulation says the purpose of nepa is not paperwork even excellent paper work it's better decisions judge bars of course is correct it doesn't ever dictator result you don't get to seek a new result but you do get to fight for a fair process that discloses all the information the purpose of which is to get a better decision your honor if you have more for the questions otherwise all  is there a bottle from the other opponents i don't recall if you had reserved any thank you there being nothing further you major in the court