it's not only a matter of it's a matter of two things here the record doesn't show that there is an agency action addresses the matter and if you can't say that they left something out and therefore didn't consider relevant factor because statute hours or the remaining time liability issue because that's the only issue they've raised they've not tried to defend their decision as a rational i e not arbitrary capricious they simply say we don't have standing to bring the case under bennett versus fear we have to establish two things for final agency action the first being that if the consummation of the agency's decision making process and the second being that legal consequences flow and e p a s june twenty third one thousand nine hundred eighty order and that's what they call it legal do legal consequences flow from that and the answer to that is they absolutely do because it is that approval that the term ends which water bodies are going to receive t m b else in the coming years and me  montana that means some streams will get t m v else and remedy the very serious and source pollution problems that our state faces and other streams will just fall by the wayside and maybe they'll come back around the next time now they make a claim that they did development so that's what he created submitted to montana as a proposed schedule and if you look at the document it goes on to page eighteen of the document and seventy three they set out their schedule for t m t l development over the schedule did not identify which water bodies were going to receive t m t else the schedule then addressed the fact that for years they had listed all these high priority waters that they said we've got to do t m v else right away their high priority and then they did nothing  says stablished schedules and so whether e p a had a mandatory duty in the sense of a mandamus you need to have a schedule by x number by a certain date we're not making that argument we lost on that plane that's what  in the state and in light of their own policy and their own regulation that says you should have a schedule and in light of the fact that you submitted to schedule and you issued an approval letter and it was a lousy schedule i'm going to find that to be arbitrary  submission and again i say the court just let's do the four corners of the submission to see where the e p a approved because they didn't back approve the schedule and what they say at the end of the letter and i think it's in the e r page three seventy three seventy one they say will issue another letter about the schedule and they never did that so what they are doing essentially is trying to draft a complete circle of immunity around  citizens of villa the to enforce section three zero three d of the clean water act and its congress use the language from time to time but that doesn't mean there's no obligation for them to timely ensure the team goals are implemented a schedule consistent with the montana state law his reasoning that this is a reasonable and date and that our own expert in this will see some minimum affidavit we were arguing for a much quicker schedule like three years and judge moore rejected that and said ok e p a s expert says you can get it done by two thousand and seven the state passed a law that says you can get it done by two thousand and seven you've entered into consent decrees with many other states that have this similar timeframes i'm going to tell you to get it done by two thousand and seven but i'm going to leave it to you completely to decide which strings you're going to do in which order and how you want to prioritize the development of these t m b else and so there was concern the court didn't take over the we've taken a look at it again and by golly we're not going to do a schedule because we don't think it's necessary and then we have to challenge that and so forth and you know understanding as you recognize that this was all supposed to happen in one nine hundred seventy nine consider that you try to interpret the statute consistent with the whole purpose of the clean water act which congress and the u s supreme court have said the purpose of this act is to clean up the nation's waters and so it makes no sense to establish to identify a water quality limited segment of a section of stream where fish are dying and you know people can't swim or drink in it and then congress says ok you need this pollution prevention plan but it doesn't matter when you can that it was following and therefore it was not failing in its mandatory duty because it was doing something and that's why we didn't further that claim in front of the after we the district court because montana had done like one hundred thirty out of three thousand t m t else and the other thing that they favor says you know that it talks about scuse me for just one second keep or i think a fair reading of that case is that under three o three d e p a does have a duty to establish t n t else and i don't know that i think that's true  years now i understand the court's concern about the extent of of the remedy and i would just say once again that the district judge tried to fashion a remedy that was consistent with what own expert said it could accomplish within a ten year time frame and what montana have a samplers as a matter of state law and that if e p a at this juncture doesn't believe it can meet that deadline it can certainly petition the court to to remedy the deadline and in fact if you gave has already missed some of the interim deadlines in the plaintiffs haven't gone running back into court because we understand that sometimes these t m t else can take longer than you might look at first blush and so i think there is adequate room within the court's remedy for e p a to go back and say we can't meet this timeframe i think what the court was trying to do is say look there has so to develop some type of an of an end date in light of all that evidence is reasonable i do recognize that it goes beyond the bare remain and but i think if you look at the way the court crafted its order it tries to plaintiffs literally made it up they filed the petition under no statute or regular regulation and then when the bureau of land management didn't do anything with their petition except send a letter they filed the suit and that no there there are a failure to do anything once was finally agency action and this court said no it's not the crucial difference here is we do have a document an order dated june twenty third that is the final agency action the other thing that was available in all of our see that we don't have here is the ability to sue on individual projects you know on r c the court said well we're not going to do this program matic review but you can come back and challenge a specific temper sale and raise or issues there this is the end of the road here in terms of the pace of montana's t m d l development it is true we could protest the approval of an individual t n b l but if this court holds that we can't bring an arbitrary and capricious challenge over the pace of g m deal the belmont then you know e p a could rubber stamp montana's doing nothing for many years and we would have no ability to try to seek relief and i really think that that ultimately is the crux of the case congress said that the nation's waters need to get cleaned up and that has to be done soon and t m b oil program is a clear part of that from the overall structure of the clean water a argues is that what congress told them was to go ahead and do the n p t s program first that was kind of the cornerstone back in one nine hundred seventy two and so even though this nine hundred seventy nine deadline to start under three or three d kicked off so i think with some you know they're cracked at least initially in this that the e p a you couldn't have held their feet to the fire back in one thousand seventy nine but i think in two thousand and three you know we're we're thirty years past that and so i think it's an interpretation of what from time to time means and i don't think you can find a specific date that said they had to be done and i think it's going to vary a lot as any arbitrate jury capricious determination will on the individual facts of the case but certainly i think by nine hundred ninety six when the suit was filed they had one c m d out of three thousand that they had never done any of their own high priority they promised to do and then they submit this this very day schedule that that is the basis for saying by the district court that i'm going to look at the pace of your t l development based on your own policy regulations and based upon before you add more pollution to a water body that you've already determined is polluted you've got to get the pollution prevention plan in place and the court referred to forty c f r one twenty two a saying is all right if you're going to add more pollution to water then just get your t l in place first it in no way prohibits new n p t s permits from being issued the same with the business of out removing streams i think that that's an a said hey wait a minute the stream isn't really polluted our data wasn't any good or whatever they could certainly go back to the district court or they could call up the plaintiffs for that matter and say this string doesn't belong on the list because the last would they would probably have to yes they would have to at least give notice to the district court that one of the streams on the list they have found should not be polluted and staff therefore they don't have to do a t m b l because the court used the need for the montana was had an active program and therefore there was no mandatory to be free p a to step in and take over now there is no hope of constructive commission from montana