if you say you're going to spend your time when someone keeps talking they're taking up someone else's time and it's important that everyone gets an opportunity and i guess you know i guess i wan gave us some extra reading yesterday afternoon but i have one question before we start is it doesn't indicate here is this an opposed motion for judicial notice or what is the situation on that right now you brought the chart in her hands since they haven't seen your judicial notice have it in your charts they have these charts are from the records you know we have a copy here so i just want to make sure that there's nothing that they haven't  judge that it was my responsibility that it preceded and i'll try thank you so much i would like to focus this morning in my presentation to the panel on four main issues first the federal energy biological opinion no jeopardy conclusion defines its own assessment of the effect of delaying improvement to degrade or habitat conditions particularly delaying the possibility of reaching targets fish passage survival rates within three years third issue i would focus on is that the agencies disregarded their best science and evidence of jeopardy by failing to require illusional upstream passage plans in briefly the flood control article in the advisory committee act and then i conclude the opening with the relief requested and fish production during the original license term i brought with me an excerpt from the record that is a map of the callus river basin in which i better not step away from the microphone in which we have that the comic committed in the original license to make available for a naturalist fish production as we indicated in our brief approximately eighty percent of the production fish species that are now listed under the endangered species  act took place in that area before the introduction in the late one nine hundred sixty s the violations were clearly alleged in the complaint that was filed with the commission initially and then was upper watershed to make it down through the river to maturity so they could go through the life cycle in which sam so monetary turn to spawn there was no other watershed smoke recovery at all until the one nine extended to it in settlement in order to create essentially a catcher's mitt up there and talents balls which is just ahead of rice like compliance correct is that well i would like to ask you is there any language in the federal power act that requires her to initiate an investigation now which is about a licensee no it does not think that was i guess a little bit of a rhetorical question because i think i knew the answer but the but i understand that when examined the city's record of compliance under the city's original license for considered to previous allegations noncompliance that for had already investigated and found to be and correct and cite from those previous allegations of noncompliance is there any additional allegations or evidence of noncompliance in the record well i must say that which is in my view directly disrespectful to this court because despite holding an ultimate play that it could not can tell the policeman to enforce the law this court went out of its way to indicate that the  that may feel almost neglecting even forgetting that there in fact were to dance on this license what we have in terms of for record of looking at compliance if i may stretch a bit of a metaphor is that first says ok the debt share inventory on the titanic is in perfect order this would not be an issue your honor and it's dramatic as it is now if it did not directly affect the new license term because what it does is it if you if you use the term will ring the bar as something similar to the technical term environmental baseline what you have here e the recovery of the resource to fully or just a adequately functioning condition so when you look at what happened in the past the commission has turned a blind eye to everything but  requirement of reports to come that was directly responsible under article fifty seven of its prior license to continue to cooperate with the environmental agencies for the development of permanent fish trap license requirements and it doesn't really require a full level adjudication for this this court had no difficulty seeing in reading article fifty seven that the licensee was required to continue to propose to the commission permanent fish culture that and is in the national fisheries service brief concerned something that's not on the table and is only planned for some time in the future if the installation of screens does not work if it's needed if it's determined by the licensee in their fisheries technical committee which really leads me to the fact that there has been no opportunity here for any of these groups to show as they have their day in court and that is what you have in federal a three at least is the opportunity to require that during every licensing it doesn't have to be an in store statement but it must be taken into consideration at least to determine what the compensatory means should be is court that the commission blowouts the first time that this came when the court said they had an obligation to consider it and therefore this is not merely academic this court spent a good deal of its opinion seventy five and ninety five percent that is delaying three years and improving habitat conditions would jeopardize the continued existence of listed species your honour's come july we are at three years and the reason yesterday and i would say that we decided just in preparing for oral argument very close to the wire we presented what has been put into effect so far and this could be a matter of simply public record looking at the orders of the commission of which the proper judicial notice will be taken at the  documents that you presented if they depending on if either side could have presented what i look at is they clearly weren't before the court previously that made the decisions that were ruling the other thing is the reason that i see that people would present then is if you what they said they would do cannot achieve what the biological opinion says is required and i hear i want do you want to you're at six and a half minutes i don't know whether i want t anyone who reads that and finds the answer to likelihood out of that to comes to me because i am missing something that is that is there there is no discussion there is no informed decision whether the measures that are for downstream protection which is the key item for everything else everything else interests on that that is the only reason that they have banned and the upstream passage facilities that exist then are walled off now it may feel that they could not ultimately bring the juveniles down and you have to have the two way street here in order for that to work there is nothing there that says anything other than we expect to come was promised again to achieve  said they were going to do the first time around but this time we mean it if you look at everything that was cited and as evidence of achieving between seventy five and ninety five percent fishponds of survival there is nothing that does not say we assume that there is one that says we assume that for purposes of deciding if the goal of the next step or something else is the next step they have never been assessed there is also nothing in the record i asked the court to look at each page of spending money the settlement agreement which is something of the old boys getting together for the next term was a compromise without scientific basis for relevant if you were to investigate this with a commission look at how much tacoma did not spend with that have been a more rational way of determining whether they should put fish ladders in right now again as well if the of what would be a quote unquote appropriate way of seeing if you could reasonably but it would have looked at what is the most prudent course for a void in jeopardy i want to turn very briefly to flood control and just that if you want to use liar time if you want that's not that's not ok i want to be very close just to say that it's apples and oranges two different provisions of the license room volved there is not an environmental issue this is flood control if you look at finally i would want to say that under the federal advisory committee act and make very brief advisory committee if it walks and quacks like a duck it is a duck i would look at the fact that its own petitioner saying that he agreed that you didn't have to if it didn't require an investigation but he said if you are already lost in court one time minute you did it wrong before and so he had to deal with that more directly in the first colonists court case the court found that in fact there was a material issue of fact so that the commission could not summarily dismissed the complaint without going on with some sort of additional proceeding the court also found however that the commission had virtually i mean if you will discretion as to whether to institute an investigation because the orders challenge here indicate as the commission what is the state of the resources now and what measures do we need to impose to protect and enhance those resources for the future this is what the resource agencies did this is what  composed the issue of what is needed for the future depends upon existing could condition of the resources it doesn't depend upon whether to convert you didn't do in the past and the commission also indicated that was not reasonable to investigation now instead it would have both time and resources to imposing conditions that would in fact enhanced environment for the future fisheries technical committee consists of federal agency representatives why does not qualify as an advisory committee under the federal advisory committee act of the federal budget committee act a committee is a federal advisory committee  conditions to come up with the various plans and implementation of various projects two of them has to protect the environment it is going to do this based upon the recommendations of the best science available which it will get to the fisheries type of committee that it will wildlife service and corps of engineers i plan today to focus my remarks on the adequacy of the biological opinion which is the national marine fisheries service document basically highly deferential arbitrary capricious standard in this circuit has made clear that the judgments that are made in a biological opinion are scientific judgments and that the fishery agencies nimtz in this case it was all of the federal environmental agencies it included american rivers and trout unlimited were usually on a different side of the table in these federal agencies on these issues and so i think that indicates that dealing with a mitigation measures that were carefully vetted by a whole bunch of groups you know the decision seemed to be well let's see how it will work we think we're going to achieve ninety percent within lives of three years survival or seventy five percent with best available technology so if they can't they've got to do everything they can to meet ninety five but if it turns out that seventy five is all they can get with  that will meet the target but what if they don't get seventy five then they'll have to laugh to look at this again and that will be an occasion where consultation under the endangered species act can reinitiated and additional measures could be required say the license leaves that open or have to gets license leaves that open all of these conditions are incorporated into the license so these are binding on  of things that can be done we also major that three years a bit differently than petitioner has suggests that the because the license was amended to incorporate  was challenged by environmental groups and this court found that as long as that litigation is supported rationally by the signs in the record that it's it really is a scientific call th will defer to the agency on as to whether that is going to be successful or not and i think that the standard that the petitioners try to impose here which they draw from a district court case  its course recognize that when you're dealing with biology there are uncertainties and that sometimes in adaptive management type approach which is what we're following here we set a high target and there they've got to considering things right that's right and certainly why didn't that happen here well full consideration was given to the all of the fish passage questions based on all of the the best scientific of  from the early ninety's where the first had completed the deal with the future we're right and said you know we don't need to deal with fishery issues here because we've got a proceeding in the future that's in  situation here where all of the issues were dealt with to the extent we possibly can based on the information that that we have but because we don't have complete information as well most never do with respect to  and we've allowed ourselves the ability to make decisions later on based on the information new information that comes in but again very you know ambitious targets have been set to make sure that  rely on that fact to find that the upstream passage was not going to jeopardize the seas i don't want to take time away from tacoma there that it's more than any questions are either upstream or pretty not to call my excuse me rather not burke as adequately considered coma's compliance record with respect to the contacts this first licenses reflects a and state fish and wildlife he has come together with the coma but you also have american rivers you have trout unlimited you have the ackermann nation you have louis county have all come together to develop a comprehensive plan that dresses fish production fish habitat fish passage water quality in stream flow it is truly a comprehensive settlement that both for an compliance history first considered that activity but it didn't more it reviewed the files in its regional office or reviewed the files and big hydro power administrative and compliance record office to review the library to determine whether or not there been any violations and if you terminate that there was no violations but it was that was it because tacoma has s that he would do temp certain things or try to do certain things and they had not done that but that that was ok because under the license all they had to do was monitor it and they were going to continue to monitor it  mr file says there will be a look at the records show that they have not done what they said they were going to do well there's track there's several issues that are going to intertwined in that question and intertwined with fishnet statements violations and for those one deals with a flood issue and one deals with the wetlands violation issue and first specifically investigated those and found that those allegations were without basis and then obviously the third issue deals with this nine hundred eighty seven agreement between the coma and washing apartment official wildlife and that third issue is the issue that's really driving petitioner's argument they felt that used to the klein investigating which was not part of the first license so therefore we don't have to investigate that was an error instead what they found was well it could have been considered part of the exercise that absolute discretion not to investigate because it's it's not really relevant for what we need to do right now in this relicensing process so i know my time is up but i just want me to two more just two more during the compliance they don't have absolute discretion here the federal power act says they must take that into consideration they didn't have consideration that they according to this court they had in force meant discretion before they don't have  say well the baseline is great the condition of the resource just because we caused it to be degraded you should still use it isn't it relevant to look at what the condition of the resource should have been to require the licensee to use that as their baseline rather them for them to slip further down there is no question that the licensing must continue to try the question is relative to the jeopardy decision nevertheless trying produce a situation where it was likely to have the extinction of the species according to what the agency looked at it is and according to pacific