injunction would like a larger one we got an injunction is to that particular petition would like an injunction as to other find an injunction against we have identified a ladder of re quite a few things in the list at the back of the complaint and we have there's an issue that i call the enumeration issue you know do we have to list everything hogan and i still don't have a satisfactory answer to my question i look at your statement if you see in your breed it says that the district court here in dismissing the institutes to challenge is to the fish and wildlife service repeated practice of delaying large bladder that goes from the mildest relief the most mild relief is already been granted up to more comprehensive probably including some intermediates for example we have identified complaint would we have to list each petition or can this court grants or can the district court grant an ongoing injunction a comprehensive injunction a prohibitory injunction i hasten to add not a not a structural injunction that says to the to the agency you when it's this twelve months that means that women are on the second and third claims for relief that looks like it doesn't address the particular first before that some of the things that are less important i think i have to disagree with that we're not asking for efficiency we're not asking for our stuff all over it's a characterization issue we're asking the agency to obey the very strict deadlines that congress laid down for all in general for other people well here's the here's the issue we have an interest in some of these petitions we believe because we typically as a scientific organization author in some cases we've authored entire petitions for citizen groups so what you think is we should one take the agency under him to put it under a special minister or something well that would be might close the case out i don't know to be honest your honor i frankly don't know what it's going to take because this court has already ruled that you can't promote that the service cannot promote candidate their own internally derived candidates work on that over citizen petitions and yet we've got it right here in black and white literally in the excerpt of record but that's exactly what they continue to do afterwards well what are you doing or you're not now challenging promotion of internal candidates delayed the titian beyond a mandatory deadline then one can bring suit and that's what we're suing over we're not saying they can't work out an internal can it looks like you've got a plane for them to rule on your petition and they didn't do whatever it's both of them so you got an injunction they had to do what they did it under the e s a because the so the secretary shall designate critical habitat well you know even if i go with you secretary to perform an act which is not discretionary and your second point is performing non mandatory work before mandatory work i would think that virtually any agency generally not conform to deadlines well we have a fit we'll have all we have a list of the tissues we didn't think we needed to put that list in the complaint these are positions that have been illegally delayed under the e s a leave the last time we checked with the service via a freedom of information act request and we didn't get to do discovery either you or kitchens we think that some of those petitions or petitions for which we offered authored some of the text were the minute some updated my question secretary to perform any act or duty under the statute declaring species endangered the district court said you are not a legend in these claims  summary judgment time we would list all those now some of them would differ there be some new one to spend one we have now some of them which will some of the ones we have now are ten years out ten years of delay almost ten years within a month or two  these claims are properly characterized as programatic challenges to the services manner of implementing the listing provisions of the e s a and as such are not within the jurisdiction of the district court under the administrative procedure act rather than of the e s a and do not challenge the agency's failure to perform a non discretionary duty as required by the citizen supervision if such claims are not authorized by the citizens which provision i think it's important to t you're getting at i have another question for you to be thinking about so you can respond i frankly fifteen have liberal and leave to amend wouldn't apply unless we were it would be up to the district court in the first instance to decide whether to allow the complaint to be amended for a third time and that  under rule fifteen yes i believe so and rule fifteen commands that motions for leave to a there's there would be questions of whether it would cause prejudice to the other side and considerations along those lines but generally in a complaint should be allowed to be amended if there aren't any of those problems present ok claim to alleges a practice of promoting non mandatory work before mandatory duties with respect to listing could use either move the microphone down because when you when you read from your remarks your head goes down your voice goes down and doesn't go to the microphone just your claim to broadly seeks to force the service to alter the manner in which it allocates available funds and staff in carrying out its functions under the statute this to promulgated agency guidelines to ensure quote to ensure that the purposes of this section are achieved efficiently and effectively including quote a ranking system to assist in the identification of species that should receive priority review candidate process and the declaration of the service cannot prioritize with non mandatory work using funds within the listing budget over work on any citizen petitions to list the species and that that may be found excerpts of record is required to say i think the claims two and three are not cannot be squared with those principles of district court jurisdiction claim three broadly challenges an alleged longstanding practice procedure policy and or course of conduct by the service of delaying that on or failing to act on citizen petitions to the species the breadth of this claim is underscored by the corresponding relief  as possible and before other work is done excepting only other court orders settlement agreements and emergency listings that may be found the excerpts of record twenty nine prayerfully paragraph i reason that the institutes are took an order from the district court requiring the service to complete all outstanding nine hundred eighty findings that have not been made within ninety days of petition submission as soon as possible and quote and seventy two violations of the seventy two violations are not alleged in the complaint but nevertheless it's fair to dismiss it because they're there even though the judge doesn't know about it we salute your liver which is actually how many there were i don't think there are seventy two now there until they just cave in and surrender and put your group in charge i mean if you say they can't dismiss a complaint even though it doesn't say anything or allege anything or bring up any case that you think is the of what actually is or actions or failure to act that you're complaining about and just to say they're not following the law gives them no notice is there anything x the that's the basic problem here with me  let me point out that we are quite willing we're scientific organization we're not a citizen group we're quite willing to go through with the service and look at their candidates and have them tell us why they think x candidate are com before why the titian and if they have a go the idea is for them to surrender their discretion in doing their duty to get to your group your honor your course it would even help your court has already decided they do not have does support us you challenge one term for sale and that gives you the ability to get an injunction for all illegal timber sales