required by a small family ranch and whether that diversion significantly harms both trout within the meaning of the endangered species at this appeal is very straightforward harmed in the future the district court granted summary judgment and enjoying to the jones diversion there's a question as to what the appropriate standard years as i understand it the court was relying on section seven likely to adversely effect and your position is that it should have used section i'm reasonably certain threat of imminent harm is that do i have that correct that's exactly right your honor in large part the district court relied upon the findings in a section seven biological assessment now the standard under section seven of biological assessment is whether or not  the activity or the action is likely or not likely to adversely affect the species that is not the section nine standard for a take under section nine the court must determine viewing the evidence in the light most favorable to the jones's whether the district court correctly apply the relevant substantive law and what that means is that there must be a seem to meet a section and take standard on the other hand we have mr jones and several other people including conflicting evidence from the state biologist so i guess i'm wondering in the end at this stage doesn't boil down to a he said she said and there's just a factual issue that needs to go to trial that's exactly right your honor you have the hellions expert missed and then you have mr larkin the idaho fish and game fish manager on the other side you also have the testimony of the joneses for all jones to jones and their reaction and so basically what you have here is a he said she said kind of thing that creates a genuine issue diversion let alone one that was harmed and let alone one that was significantly harmed that are injured the underlying assumption is he would have been in the position to monitor the  to regularly inspectors or in some way having a duty to determine whether or not a fish would coming into the ditches that was up and made out your honor that that is actually the testimony mr jones testified that yet he monitored the ditch over the course of that forty years he constructed the ditch he operated the ditch and so this went on for forty years and at the end of the irrigation season he would always inspect the entire length of the ditch so in the course of doing that over the course of forty years he never saw any boat for out in this ditch is there any is there any  whether his testimony creates a genuine issue of material fact and he doesn't have to be an expert witness or qualified as an expert witness to create that genuine issue of material fact the actually get to the point where there would be a trial bench trial we can chant that the evidence is such that this court can simply reverse the lower court's decision and enter summary judgment in favor of the joneses and excuse me i think i think we're saying i think how can we do that in summary judgment if now you're trying to weigh the value of one person's testimony versus the other we can't do that and some reason why i think it's possible diversion but even if accepted the facts do not show a reasonable certainty of imminent harm particularly when considered with other uncontested facts and conflicting evidence and the district without straining migration breeding injury is eminent but mere impeding movement upstream beyond the diversion is not enough to prove imminent harm now the record shows that all of otter creek is excellent habitat it's excellent for breeding and it's excellent for sheltering the biological assessment to be a describes the excellent habitat of the creek  teles on expert it nets that the creek contains excellent habitat therefore should the diversion actually prevent movement upstream the rest of our creek below the diversion which is the have any produce a patient here by either the forest service store the fish and wildlife service or the i don't believe this is strictly a private suit against a private land owner it is your honor now that the federal during the last two months of the spawning season so both trout at that point can go up above the diversion into otter creek for whatever purpose including spawning at both for the biological assessment an is no breeding injury here let alone significant injury that will actually cause death or harm but i thought the target was the ditch not the creek there's also the ditch your honor yes there is and judge windmill that was his second conclusion in granting summary judgment in joining the diversion that the canal itself off route would be diverted in there but again there's there's just not sufficient evidence jones testimony that she's never seen one in the ditch we also have miss haye's target aeration the ranch and that in four years she never saw a fish in the ditch let alone one that was significantly har creek it goes down a little more than a mile and it goes to morgan creek and there morgan creek has excellent habitat now there was some conclusory evidence or testimony provided about a steep rocky drop off that would us to have to weigh the evidence to determine well i think what drivers have to do is look at the evidence and determine whether or not they've met their burden and you don't have to wait to do that they proffered evidence and they he's not familiar with the record and he's not accurately stating it or the law and i'd like to try to explain to the court why i say that first i'd like to remind the court that i would just say that i don't think we need to disfavored remedy if you have the burden of coming forward then and you show that you're entitled to judgment as a matter of law the burden falls to the other side to come back and rebut what you've shown that's w did we filed expert declarations we filed will get to the heart of the matter it's a question of whether there is a genuine issue of material fact why is there no general issue which because we filed evidence including expert testimony and agency records that were on rebutting that they did not file an expert declaration they had a two page affidavit from a state fish and game employee that came in the middle of this litigation didn't propose to be an information which is the predicate to your expert's report when they have to have an expert report because we have to pull together the science your own of the arizona cattle growers decision that you were a part of  looking at take a look if that will just be a take it is a term of art it means kill injure harm or harass endangered and the arizona cattle growers decision says to look at take a you've got to have species present there and then because the endangered species act is a forward looking thing a group like my clients get an injunction that's forward looking to stop harm in the future you've got to explain why those parm and then he says that if there is one you can use a stair step system for example and still if you take here is and then you take the other declarations that say but we never even seen a fish so the likelihood of future record the supplemental that serves page twenty four is a very rough diagram of this diversion the stream comes down and normally it would take a bin and go off the thing block it right there and it's a straight shot down misty explained that given the velocity of the flow the fish are going to go down the diversion and there's also evidence in the record that is d h is not the kind of gauge that perhaps you imagine is actually more like a rose of this the typical honor i think what judge windmill did was he carefully look at what was the evidence in front of him and what he found was we presented expert evidence and it's not just our expert it was the forest service the forest service and there was procedural questions here let me explain that we sued in december of two thousand because mr jones had a special use permit from the forest service that had expired he had no authorization to divert until he got a new one the forest service needed to do section seven consultation under the heading under the usa which they have not done so we sued the forest service and mr jobs we went in for an injunction in march two thousand and one while the forest service was still a defendant saying you need to do section seven consultation that was our first expert declaration that look at the section seven and section nine the four service agreed with us they said yes we will do e s a section seven consultation and they issued the by a logical assessment in april that year two thousand and one so we settled with them they've been out of the case that biological assessment is the forest service as expert units that has this diversion needs a measuring device ahead kate like all the versions have so you can measure how much another five thousand dollars mr jones was paid twenty thousand dollars not to divert the year if we brought our injunction he could have installed it but he has not to this day he's not they have not installed those basic protections and soon as they put into account the flow right takes the fish down and then never responded wait let me see that really goes to saying look i don't i don't like your opinion because i don't think you actually have contradicted by documentary evidence what we had here was our experts supported by all the documentary evidence studies by fish and game and the forest service finding the ball trout in the stream finding of the diversion not keep doing this they should do something different because this box migration he said i don't think the fish go into the ditch will be a problem because they'll come back out but he didn't respond to misty as more elaborate scientific that version but he doesn't take on the problem caused by the diversion itself so that both have that need to go up and down the stream can't do it when they're diversions in place and i was going to say before we didn't try to dispute their evidence because we thought assuming that it's true which the judge m october november and indeed that's what the judge said but the fact is in the record before you mr jones found an application with the forest service to get a new special use permit and he said in there that  he would irrigate he would leave it in place until november that's in the excerpts of record page eighty two that was prior to this litigation and he's saying it remains in place till november then he files a declaration later saying oh it's only there till september we could go back to trial and figure out whether it's there for two more months or not that it struck me when i was looking at this that that didn't matter he said oh i never saw a dead ball shrouded you all seem to be crediting that with the fact is the record shows that the d n c is used to drive up and down social mental in your page seventeen is a report from the forest service talking about tire tracks in the supplemental e r page sixty three is another observation from this page page seventy one is a photo what this means is mr jones is getting in his truck driving it in the future moving around so we can get all the water and then driving out he's not looking trotty is not a biologist we could've argued all this we could go to trial on it the fact is let's assume he's right he hasn't seen a fish it's a forward looking standard anyway past harm is not what we're talking about this court's decisions make very clear you don't know the past harm it certainly may be relevant but in this case vast reasonable certainty of threat of imminent harm that's right it's got to be a reasonable certainty and what we said was that when you need a fish in there to have harm and we had evidence or about it that fish had been doesn't require absolute certainty requires a reasonable likelihood of future harm it's not rocket science to understand that a diversion harms the fish in the different ways by blocking their obstruction and sending them down into a ditch boulder listing rule talks about in great length and this theory testified in her decorations that she had seen these exact same problems through the upper salmon basin in fact we have a program in the upper salmon basin to modernize diversions that's what we're talking that is modernizing diversions not taking away anybody's water right spending a little money so that fish don't get sucked down the fish and they can come up and down but that's what the four service is saying they have to do in order to be authorized to use it anyway they cannot use it's actually wasn't such an expensive proposition from something i read in the record media my understanding i don't think that it's in the record in much detail if at all but my understanding it from working in  take their depositions and we all went for a summary judgment admittedly they said we should have a bench trial but the problem's going to be the case gets a lot more expensive if we're going to go to a bench trial the lower court award is that it was a monthly expenses for both sides see fish in the past and have a two page thing from a state biologist saying you don't need to fish thing but you need something that's all they came up with they didn't excuse me they didn't show that they would win and that our claims would be thrown out somehow we focused on section nine standards which show fish were present we used science and literature to explain why these harms would happen and judge when was that they didn't rebut that showing i think is a point and that certainly what happened i'm just saying that those services are available at the intent of you know final orders of this court and even after if the parties wish to thank you your honor my clients are trying to be reasonable the point is let's modernize these are help modernize these fish trains it's happening all over idaho as the open ark and paste from the ninth circuit in two thousand and three indicated it's happening in the path of the alley that was a case where the ninth circuit of health fish and wildlife service and national fishery service requiring limitations on diversions to protect salmon and steelhead so they modernized and were looking for ways to let the streams be more reconnected sort of the fish can grow and be more healthy but but you have folks who are refusing to do anything like here where the forest service says they need to do it for special use permit and now the district court has said they need to do it under the s s a and tell we filed this lawsuit they were irrigating taking the water out without of rocks on a tarp or if they bring in something that nasa constructed the point is whether or not that diversion whatever it may be is causing a headache i've listed both tr and that's what this is all about and the reason that he didn't say that is because it's simply that there's not enough evidence in the record to learn one thing he said that caught my attention is that he suggests that there are two diversion that's rebutted it's rebutted by mr larkin by mr jones by mrs jones and buying this heinous and frankly even before you get to the jones evidence they didn't provide sufficient evidence to prove their case enough it's not an issue of simple harm it's significant harm significant degradation significant impairment actual death or injury so frankly they they haven't met their burden but that also is