i mean proceed good morning may it please the court i'm todd true and i represent the petitioner northwest resource information center i'd like to reserve five minutes of my time for a while let me start with the core issue that i think the thread that runs through this entire petition the power council has to be accountable for determining whether and how the two thousand and fourteen fish and wildlife program actually meets the substantive requirements of the power act to protect mitigate and hance fish and wildlife it has to address that standard and support its decision with the reasons the two thousand and fourteen program doesn't do that first the council couldn't really make that determination because the two thousand and fourteen programme still doesn't include the necessary measurable biological objectives to inform such a determination even though the court said in  our i c one more than twenty years ago that those objectives are necessary and the record says explicitly that the biggest missing piece in the program is measurable biological objectives and we mentioned that site that record evidence in our reply twenty twenty one in our opening brief thirteen to eighteen second the council didn't make that substantive determination because it treats its role in adopting a fish and wildlife program as procedural except or reject recommendations from the fish and wildlife agencies without making that subset of determination whether those recommendations are sufficient to meet the power x substance of requirements and finally because the program doesn't address and decide whether it meets the power x subset of standards the council never fully engages the central both a and structure of the power act itself adopting a fish and wildlife program that protects mitigates and enhanced is fish and wildlife while also providing the region a reliable power supply there's a good example of this problem on page two sixty six of the program itself that's an appendix s the response to comments it's volume two of the e r page two zero nine of two seventy eight unfortunately the volume is not based stamped but that's where the council summarizes its decisions about what fish protection measures it's going to the main stem of the columbia and snake rivers and the summary is a collection of reasons procedural reasons for what the council did it says we accepted the recommendations that were consensus some of the recommendations that we didn't accept weren't to consent to consensus and we don't think they're quite ready for prime time some of the recommendations came from the public and we don't accept those but there isn't any and so the recommendations that we do except are sufficient to meet the protect mitigation and enhanced requirement and here's why as i say that failure runs through all of the issues in this case let me talk about those for just a few minutes let me turn first to the one of biological objectives as i said the record is clear that without objectives it's not possible to assess where we are on the playing field of achieving protect mitigate and hands council staff said that the independent science advisory board said and no one has said otherwise and if you look at appendix d the fish and wildlife program which is objective what you will find is a long list of goals a few of which have objectives and measures those all come from the biological opinion under the endangered species act but let me stop there and ask you simply because  something from one of the bios related to the endangered species act doesn't mean that it also couldn't be one of these measurable objectives does absolutely correct they're not mutually exclusive no they are not  d you take the i thought one of your argument seems to be that they don't have enough objectives they have some but not enough is that fair there's two problems with the objective have if you look at appendix d there are a whole lot of goals there and there are many objectives that say to be developed should be adopted forthcoming and that's where we've been for the last more than ten years there are some objectives that are there and they're the ones that are taken from the biological opinion they could meet the requirements of the power act but we know from what the council has said that substantive protect mitigate and enhance requirement is different from the requirement under the endangered species act to avoid jeopardy we actually know that the cow and even though there are differences there are some different standards you still could have the same  we're we're the focus here is on the council has not said these these these actions meet that subset required to protect medicaid and he has and here's why and it as long as it avoids that question and doesn't address it squarely then it can go along without biological objectives to help it measure where it is in achieving that objective it can continue to say we will defer that later ok but i wan step let's say we have bunch of goals and then we have less objectives lesser number so we have a little list of objectives if they were to go back now and say check to check check these objectives in our view meet the power x mitigation etc language that a little would be the difference it's a little bit different than that your honor i believe the purpose of the objectives is to their kind of a yardstick here is to be able to have some measurement right and so what the council would have to do is say here are the objectives that we now adopted and they did say that they object they they took some from the endangered species act there are a whole bunch that they don't have and i want to come back to that in the right before not like the ones that do that they do yes ok what they haven't done is explain and make a determination that those objectives that they have adopted are sufficient to meet the protect mitigate an enhanced requirement for anatomists fish that go through the power system where is in the p that breaks apart the i mean you could answer the question was true because this is a pretty important courts where does it say that ok that power act itself says that it's a substantive requirement that that the fish and wildlife program is supposed to protect mitigate and hands you know anderson well i think it would be a unicorn in sort of agency type decision making to have a substantive standard like that that the agency did not need to decide whether its actions met and explain why they did is the option of the objections and that is the adoption of the objections pretty good evidence that it the they think it meets the statute well your honor the court has said many times that if the agency doesn't explain why its action meets the requirements of a statute we can't infer that reasoning we can't supply that basis they have to tell us why they think that where we are now is that the power council adopted ject as it adopts a program and the implicit unstated an articulated conclusion that we we are to take away from that is that that meets the power act but there isn't any discussion there isn't any and this is why these actions are sufficient to protect mitigate and enhance so so if i boil it down you're basically saying that there's not sufficient explanation as to the objectives that they did or anything else in the program but but and it's not just that there is a there is a insufficient explanation there isn't a determination with an explanation it's it's it goes beyond that if if the council had to explain its actions we would know whether we have gotten twenty five percent of the way to meeting the protect mitigate an answer permit fifty percent of the way only ten percent of like we would know for example and this is very important we would know if we were complying with that standard for the council would know that it needs to adopt additional measures and it would then have to think that that now is an additional requirement you seem to have imposed we started out with we have these objectives but we don't know right there's no explanation that they that these meet the power act language but now you're saying they need to go further than that and they need  us yardstick where we thought and i'm i'm going to sort of the second there are two pieces to the power that they have to put together one is the requirement to protect mitigate and han't provision while the other is to provide i c to from a couple of years ago where the issue was could we do more to protect mitigate and enhance and still meet that power supply goal that's what never gets addressed here and that's where that's where i was going with the more question so for example in that case and so you're really i mean when i read your brief it seemed to me that you were suggesting that the council equated compliance with the as a as compliance with the norse with power act and so i looked at it and said ok there's no question the power act express recognizes that measures in the councils fish and wildlife programme should compliment other environmental issue tips correct so if in fact the council then  i know they do but i don't say their name over there i specially leave it out beyond those contained in the essay then it seems to me they haven't substituted the essay and i looked at from the kootenay tribe which was above it seemed to me that the remains strand flow and passage objectives in the two thousand and four programme were largely based on the however the council didn't receive any alternative to those and the passage read the passage measures objectives included in the biopsy that it could have considered no party objected that the bio measures and objectives didn't serve to protect the base and fish shop populations so i said they didn't have anything opposite and so then i'm saying to myself i can't really say this is just the e s a so let me focus on two separate things here there are some a suite of measures from the say that protect the salmon and steelhead that go up and down the river and then there's measures to protect other fis species but the point here is that adopting adopting those measures from the e s a without explaining why and to make insemination that they are also sufficient to comply with power act is a problem because the council has said that the power act actually sets a higher substantive standard than the e s a so on its face the idea that what comes from the e s a is sufficient to comply with the power act doesn't square up to what the council has said is the difference between the e s a in the power but you know i'm really having trouble exactly seeing what they need to do because yes we know they're not coextensive but we also know that if you had certain provisions that you adopted under the essay or mitigation nectars those well could be objectives that would be sufficient under the  didn't and it seems to me if they say ok we have these and now under the power act in terms of our procedures what we're going to do is we are to have these let's just say five objectives the only thing missing is that they're not saying oh and these they may have they may comply with the but they also do comply with our act and that's why we're putting in this if they had reached that conclusion they would have had to offer an explanation for why something  colleague here and we will come back in a few minutes enough good morning your honor may please the court my name is john shirred and i'm the general counsel for the northwest power and conservation council and before i begin i do want to acknowledge and thank all of the responded interveners who participated framer of bits just got in my sense five logical steps to it so number one is section four h of the northwest power act is unusually prescriptive in telling the council how do amend the columbia river basin fish my life program and prescriptive both process and substance second the statute is particularly clear and the council is to develop the fish model of program on the basis of recommendations for a program measures an objective the begin a program  process the statute puts particular emphasis on developing a program on the basis of the recommendations and the views activities and expertise of the federal and state fish and wildlife agencies in the regions indian tribes vacated the council's decision to adopt that program precisely because the council did not properly rely on the program and the recommendations that came to the council particularly those of the fish while efficiencies and tribes and the council did not properly explain to the statue why not so for we've done a program amendment processes since one thousand nine hundred four the councils worked hard to follow the requirements of the section for each of the act as guided by the ruling of this court in ninety four in particular the council develops and approved program measures and objectives based in the recommendations received to begin an amendment process with particular and significant deference to the recommendations of state  agencies and indian tribes so five that's precisely how the council developed and approved the two thousand and fourteen fish mollett program the council use the program amendment recommendations to begin the process as the material of which the council developed the result in program this includes all of the programs main stem flow and passage measures and objectives that are the focus of an array see here but it also includes the many many program measures for tributary mystery habitat improvements for production activities related to have attacked improvements and for a number of other activities and i want to try to simplify this too much but it would be helpful to do so because we have of documents that we've been soaring through so to try to get i mean i think they're with you all the way to the end all the way to your step five and you've basically said ok we took some of these recommendations and cetera et cetera and we adopted them they come from a variety of sources and they're i want to simplify too much what they're asking for but they're basically saying but you didn't really explain how those meet this higher standard or where we will get then in terms of the scale of the protect mitigate and enhance plus having the appropriate hours so i would appreciate your response to that you have to go back to both the statute and the ninety four decision of this court the council is not on its fish and wildlife function is not making an independent biological judgment as to what is to be done to protect me  doing is taking the recommendations for measures and objectives that come from the agencies the fish and wildlife agencies and tribes in the region federal and state fifty five agencies in the regions indian tribes and putting that not on the other hand we've got thousands of measures through the all the subbase we have sixty said basin plans that are part of the program we have measures an objective through all of those many of those have to do with fish that are not listed under the endangered species  some of them have to do with fish that are listed anatomist that are listed but have additional actions that are part of our program to protect mitigate enhance these are separate statutes we have a particular statute in the function of the council  the fish and wildlife program it's put it in very unusual statute you have to go back and read the court's decision in one thousand nine hundred four when it tied the council very distinctly to the substance that comes in the door in the recommendations that begin t gave us recommendations out of which he shipped the program and then many of them after that also in this litigation in support of the council and the representatives are here today so i think that bodes well for this is not a case there are moments when the council has significant issues that crop up in the recommendations as to differences between them conflicts be different between them and that's work that the council has to work with the public and with the agencies and tribes to resolve and if you want to look at the landed on the cutting room floor so we had a set of recommendations for main stem flow and passage measures that came in from the agencies and tribes and others we had a recommendation that did not come in from the any of the agencies and tribes to operate the john the dam at the minimum operating pool we made a decision under section four eight seven of the power act you make a decision whether or not recommendations that you adopt if you don't adopt them you have to make a finding based on this very specific requirements of section four of seven one of those is a requirement that the activities they basically make a judgment whether or not the recommendations fit the standards and for   to the low flow because the agencies and the tribes don't support them you didn't say because these recommendations don't complement the existing and future activities finding that could have been a slightly more precisely worded but it is the standard that we are not adopting that recommendation that came because it was not one that complemented the future and existin agencies and tribes that had been recommended to us for the operations the lack of support by the agencies and lack of support no one gave us any any recommendations or any comments in support of that particular one in the process  past the recommendation that's been before the council before there were times when people did supported this time it was not one that was supported by any of the agencies and tribes is an operation to be implemented within the scope of this program the next two years so we did not adopt that one and we made the finding perhaps could have been more properly worded but we made the finding in this case we did get recommendations for other main stem operations that aren't in the part of the  program that's one example of many history of the program taking in recommendations from agencies and tribes for operations and folding them in the program and eventually they find their way into federal agency implementation made many decisions for some time on that issue in the councils program the northwest power act is particularly geared toward how to protect mitigate enhance affected by the operation develop an operation system there is most in the legislative history of the act itself a sense of congress accepted the fact of the columbia system our job is to work to acknowledge what existing power production production resources are in the river and figure out how you can protect million house with those projects in place you may operate them differently and if you do that you made the rate the generation of those projects are statute is not about changing the existing system that it is about protect mitigating the hance fish and wildlife in some way with that existing system in place and then walking over to our power plant function and seeing what resources are the low cost resources you add to that system in order to continue to have an adequate here's what i'd say it is the same in a sense same argument that we think response to everything that they make which is the fish month program does include biological objectives as recommended by the agencies and tribes and others in  four one reason this court found that program flawed was because there was a set of flow objectives that were recommended by agencies and tribes of the council under section forty two and the council neither incorporated those in the program no true we have no other recommendations for quantitative biological objectives that came from anybody let alone from the agencies and trust that the council left out of the program and and then had to explain why we did not express the right ratio and metrics of natural population natural spawning populations and artificially propagated populations and we gave you a cites to that and we spent months working with the agencies and tribes and others trying to figure out how in the program at in spawning grounds we have a number of metrics and issues about that the program the i independent science advisory board in a number of the recommended parties recommended there's a deficiency there we need to fill but what we didn't get recommended were how to fill it we instead worked with the agency tribes on is how to spend the next few years trying to fill that process and we'll see what happens when we get in the program we didn't quite get to it at the end of mr trees argument which reserve it is that the metric issue that he's referring to at least that's in my view that was the metrics issue that we had during the program that was the real issue of substance that we spent many many months and a lot of work on nobody gave us different metrics of either measures especially for main operations or for objectives of significance that we didn't deal with and most of which we include in the program so i i think the point to emphasize at the end a couple of things i want to emphasize one of them is we're not going to touch on all the arguments in the time that we have here but but we do mine them says we think they're all flawed by the same point and they are that if you look at our excerpts supplemental it's a record from the council we included all the recommendations that came to the council took up four of the first five volumes of our record another volume and a half are the required comments the recommendations that's the material out of which we craft the program when you look at the petitioners excerpt of record the recommendations aren't in there and that to me is the sort of the single  best indication i can think of the problems with and they're disconnected from the recommendations they're divorced from the specific requirements of section four age is specially detailed by this court in  the court to disconnect the counsel from the recommendations and make independent decision making and substitute for howard make an independent decision making in terms of adding different an additional flow measures in  thank you your honor let me start out with the n r i c one case just briefly the way the council has read that case is that as long as it follows the procedures specified in the act whatever comes out the other end of recommendations or explain why we didn't take the recommendation of the public and that reads out of the power act that effectively reads out of the power act that subsidy requirement to protect and to actually protect mitigate enhance because it means whatever comes in that's the best we can do and that's what we act on now let me just also say that it is not correct that there were no other recommendations either for biological objectives or for actions look  as i understand the scheme here the council is an independent generator of these ideas in fact it's more of a consolidator i guess is maybe one way to look at it you agree with that it receives from the resource agencies in the way those are sources of recommendations but let me just give you an example here to maybe make clear what i'm trying to get  there was a proposal to increase bill to improve juvenile survival through the system and that came from the state of oregon and it got reviewed and the answer was well it's not quite ready for primetime yet the council never asked the question do we need something like are the recommendations we already have meeting the protect mitigate inhance or do we need an additional increment of survival to meet that it and it didn't say if we do could you oregon in the other fish and wildlife agencies get together and bring us a proposal that would actually implement this spill recommendation the things we're concerned about will amend and put that into the program they can do that they don't have to be a super fish and wildlife agency to do that they just have to take to decide have we met protect mitigate and if we haven't then we need to do more where can we go for more it could have been john de drawdown it could have been spill they have a whole lot of tools that they're not using because they say if there's not consensus from the fish and wildlife agency then we don't need to worry about it or if there's disagreement then we can explain why we're not doing it or if it comes from the public that doesn't matter so much they are all focused on procedures and the in our i c court was not telling the council that the only thing that matters in the power act is following the procedures so the bottom line here is again with the biological objectives if you look at our brief the council staff its self said we have enough information here to adopt a biological objectives this time around if you want to do it that got sidetracked into a discussion about hatchery and ultimately  council said we're going to do what we did before which is continue to discuss this they could have at that point said we've got a lot of information about biological objectives here it is we want you to come back to us in three months or six months and propose a set of biological objectives to us so that we can actually measure where they were meeting protect mitigate and they aren't they don't need to be a super fish and wildlife agency to do that so the the they also had other substantive biological objectives that they could have done the same thing with the public said why don't you adopt the e s a based recovery population numbers for these and address fish as a basis for deciding whether you're protecting that a gating in an hansie then we'll have a we'll know you know we've got a thousand fish now in the recovery goal is ten thousand fish that we haven't met protect mitigate in hands the council didn't do that because it didn't come from the right place and it wasn't agreed to by the fish and wildlife agencies it didn't say well yes we do need some population goals although that kind of said that it just said we're going to study it a while longer there's no effort because the council doesn't engage and make a determination and make an explanation about this protect mitigate an enhanced standard there's no backstop to this procedure this would just go on and on following procedures and the duty the subs are duty that this court found in  c one that it talked about again in our i c to never gets on the table because the council doesn't have to say where it is on the map and let me just point i mean where this really where the rubber really hits the road on this comes up in our i too where the court talks about this sort of interplay between a reliable power supply and fish and wildlife protection and what what the court basically said there is there's at the bunch of ways of counting for these fish and wildlife cost that may affect whether you have a reliable power supply and that really makes a difference but you're raising that issue in the wrong place it's not doesn't come up under undue consideration in the powerplant it's really that's an issue for the fish and wildlife program and we didn't challenge the fish and wildlife program under that power plant and so here's what's happening we the council says this program is not going to cause a problem for the power supply because it's just too little it doesn't really matter whether we use this counting method that says five hundred million or this one this is two hundred million because in neither case is it going to threaten a reliable power supply without saying whether this little program meets the protect mitigate and enhance requirement which it doesn't do then we don't know whether we should be striving to strike a different balance that would that would force a decision about these costs so that we can achieve the balance that the power act northwest resource information versus northwest power and conservation council is now submitted inward journey for the morning