pritzker there are multiple numbers but the lead number is twelve dash one five one four four it's my understanding that council has allocated a month's your group who is going to go first understand this just loan you're  going to lead off is that right district court and uphold the soundman of biological opinion this court recently reversed the same district court's invalidation of the related delta smelt biological opinion obviously the present case should be approached through the lens of the delta smelt decision the delta smelt decision recognized the complexities and the importance of the massive central valley and state water projects and the difficulties of managing the increasing conflicting demands placed on water flowing to the region the court also recognized that it is not the reviewing court's role to resolve the difficult and fundamental policy questions about allocation of these water resources and that the court has of them did review on scientific issues within the expertise of the consulting agency all of these considerations are again relevant and important guideposts here ago it was the exploration of some of the water contracts trigger the assessment and so on what triggered the need for consultation here there were two things that turned first  argument point that delta smell control some of the issues here one of the factual questions i had i'm not sure i can resolve it from looking at the record is this is the same district judge who heard  evidence from multiple experts and multiple declarations how can i be assured that the district court put that evidence out of his mind when he said here i don't need and making sure that the agency assessed all of the factors it with supposed to assess so what assurances can i find in the record that he wasn't unduly influenced by what he knew the delta smelt decision accurately observes that the appearance of an open record was a reality and in effect the district court conducted a proceeding as though it were a post hoc nose and common type seating with a district court me in the role of judging the biological the competing biological opinions against the comments it was receiving in our view delta smelt is dispositive on this issue because the same thing happened in this case well i guess what was not clear to me was we had not yet issued our opinion and delta smelt so why did the district court not do in this case what he did there which was to appoint the same experts to advise him on the scientific and technical issues here well i won't get in to the i want to speculate exactly about his motivations but i will say this first of all there's even more expert declarations in this case than adult to smell and the in the supplemental briefing the plaintiffs have tried to distinguish tell to smell because there were seven to six experts in that case and there are not here and i have many reasons why that is not a distinction but let me just pick out my my best radio and i can continue on if they don't convention first of all the delta smelt the solution stated that the asarco case was directly on point is also on point here and that was a case where there were no indication of saw the no six experts furthermore the exceptions to record review cases all of those that say they are to be narrowly construed not of those involved seventy six experts indeed it is the very unusual case of an a p a review case that there are court appointed experts and if that were reason enough to simply open up the record to make it a completely open proceeding then there would be no record review rule at last what's the practical distinction between the court appointing its own expert under seven and six and the court relying on computing declarations by experts indorsed by the respective parties if the evidence is being introduced under one of the four exceptions that we articulated in lands council first of all there are the ru it's providing a mechanism to have a nonpartisan and independent expert to help the court it also has safeguards for the parties that that are not present when you have this kind of you know hired expert declaration and i would think that's real time the sense would never contemplate what happened here which is thousands and thousands of pages of back and forth and i guess you know again to add to my point these declarations do not fall within the narrow exceptions to record review they are replete with new analyses opinions pulling out you know it's it's a debate about the interpretation of the studies and the data that exists this is not explained you know sort of background explanation ok but i  assume you would not quarrel with my hypothetical that there might be a case where it would be permissible to rely upon that adversary process as you feeding the district court on the science by asking each of the respective sides to proffer their experts discussion of the science i i will this is there might be a case like that but that is not this case  there just to follow up on it so you're feeding the point that the adversary process can be used by the court to inform the core of the background ok i think that w did that the the narrow exceptions include has one nation of technical terms and so that i'm i'm talking about the narrow if steps but i see no occasion why there would be this back and forth and you know the sort of adversary you said this i disagree with that you pulled out the wrong sentence from the study you know i rely on the sentence and so on and so if i don't see so what is your position on that scientific development of the cane i don't think you know that it's the word adversarial that i take and that's the point right are you saying that there can never be an occasion when the evans theory process can be used by the are cases out there where district courts have allowed here and and a declaration and this court has held it was not abuse of discretion what ordinarily we're talking about one or two i mean lance council goes pretty far i was actually surprised at how much our panel there really wide apart and the expert opinions that were offered by for example the environmental  parties in their case in order to convince the panel that the science that the forest service had applied was deficient and look to me like that was kind of a classic example of the use of the adversary process is it was wrongly decided i'd like to know i mean at some point you know we've got to bank on this case once before i can't predict what's going to happen down the road but we're very aware of how important these issues are to millions of californians  extremely narrow and it was it was there was exceedingly exceeded in this case i didn't like this at any tension between lance council and the most recent kings versus i do not i what i see is that lance council primarily stands for the proposition that it's not the court's role to assume to act as a referee of scientific journals it's not the court's role to not defer to the agencies and that's to me the important teaching of lance counsel that delta smelt is entirely consistent with i just want to mention one more thing about the se six issues i'm going to defer to this point because i know she's prepared to talk about this but in the delta smelt decision the presence of seven to six x bush was one of only six or seven factors that led this court to conclude that panel and i'm not sure i agree with you that that was a minor point well then i certainly can't say that i know better than you on that point that time but i but i guess what i was looking at and i think is the some you know outside expert advice on some of the technicalities knew what to do and in fact it asked the parties to nominate seven or six experts here and they did and the parties did and the court just without any explanation dalton i said i'm not going to point them so it was up before after the twenty decorations had been filed o injunction proceeding with live testimony that went on for multiple days there had been many declarations that had also been submitted and that proceeding and the district court had made you know me is in recognizing that we review for abuse of discretion the district courts the terminations as to what evidence may properly be admitted under lands counsel but we're dealing with a judge as we are with i think all the parties here who have lived with this litigation now for years maybe a decade or more and there is a history behind this litigation that judge wager couldn't be human if if he is he's not making this decision in a vacuum he's making a decision based on what he knows from years of handling these cases and and how as a reviewing court we through this record to determine whether or not he abuse that discretion is the difficult well i would suggest the court does not need to parse the record and do that i think that's the correct approach would be to did what the court so we're not are going hypotheticals i mean there are challenges here for example to whether the raw fish salvaged data was could appropriately be relied upon in order to  extrapolate the population of the various fish species me to me that's sort of a classic scientific debate over what is the best available scientific evidence to inform the discussion and apparently you know fish are not very cooperative when we're trying to do a population census count so at what point do we defer to the technical expertise of the agency and say well if russ alba is data is the best you've got and that's the basis for your decision research declaration because he said that certain paragraphs were excluded but that he turned around inside to them in that decision i think that's an example of how sort of confused this became the let me talk about the negative flow in the ross issue because there are many similarities on this issue and the delta smelt and i'm not saying that the particular studies that the agency relied on know figures sixty five sixty six indeed if you look at the party's position in this case the department of water resources argues that the agency relied solely on particle tracking modeling and the expert i mean the export point of make the argument that it relied solely on these figures and in fact the reality is that the agency relied on all all multiple analyses including those two and also studies that involve salmon so the the same thing is present here as they are which is that there were multiple analyses and there pennin please the court my name is kate paul i'm here today on behalf of nine defendant intervenors representing conservation and fishing groups and the women when to try all of whom have deep interests and ties to the help of the salmon know their fish populations that issue here for fishermen clients in particular have made great sacrifices to try to protect and restore the salmon populations of california including experts second gave the appearance that the proceedings were a forum for debating the merits of the buyout third allowed post decision information to be advanced as a new rationalization for attacking the agency's decision this case and it's like to just use the example of the ross cell which question which comes up in the context of action four point two point three in the reasonable and prudent alternative there the court completely followed or failed to follow the progression for the record review rule which says first you presume that the record is adequate and only look outside of the record where the proponents of extra record evidence have made a case that the record is inadequate in some fashion and have carried their burden to show that it meets one of the four narrow exceptions to  record evidence or to skew to the administrative record and the court failed to do that here and i think if it had done so in the context of that particular action it would have recognized that that action was designed to protect individual fish from being in trained into the area where it suffers adverse impacts from the pumps and also in the interior delta which is hostile to these wasn't designed to protect a certain percentage of the population which is where the court got wrapped up in trying to fit this action into a hole that it was never designed to address recognized at one point that the agency wins in that sort of battle of the experts but still relied on plaintiff's expert burnham to require additional explanation about  court's holding that new very endangered species act where the a p a obligates the consulting agency to address those not jeopardy factors doesn't resolve the issue here because while they sued the fish and wildlife service for not section four zero two point zero two and i think that argument's indicative of the approach that the plaintiffs and to a large extent the district court took in this case which is that the agency was appalled no matter what it did and it really tries to set in the impossible threshold that would paralyze here agency which may be playing just in time but it's clearly not congress's intent indirectly new agency to take action to protect these species that are on the brink good afternoon your honors may have please the court my name is william sloan my counsel for the metropolitan water district of southern california presenting with me this afternoon as mr clifford lead the deputy attorney general for the state of california and also mr david bernhard who is counsel for the federal contractor parties we have divided the issues i will be addressing the standard of review as applied to this case the district court's proper admission of actual record evidence and how the agency violated the endangered species act best available science manning mr lee will address the application of the standard of review to two specific components of the reasonable and prudent alternative that's the inflow export ratio in the o m r flow limits and mr bernhard will address the issues on cross appeal we began by hearing quite a bit of discussion about the smelt this issue and i think it's important to observe that the smell decision could not and did not overturn the supreme court and this court precedent for the a p a standard of review of agency decisions namely that the agency must provide a rational connection between the facts found and the choices made by the agency second the smelt decision could not and it did not change the exceptions for the admission of factual record evidence as this court was discussing earlier  the lands council case and many other cases have all established a longstanding precedent that such evidence may be considered for the explanation of complex and technical terms third and finally of the smelt decision could not and it did not change the long standing rule that a court may not rely on post hoc rationalization means that are not stated by the agency as this court said in the pacific coast federation case the that still exist even after the smoke decision are now the task for this reviewing court to apply that standard of review to ultimately determine whether the district court abused its discretion in the admission of actual record evidence and to determine whether or looking that the thing in it it certainly informs your decision with respect to the law however it should not inform your decision with respect to the facts and the review of the administrative record it is a different biological the same river systems and the same water projects i mean i realize that there are differences in terms of the survivability of different species some are more hardy than others but when you're talking about limiting water to this biological opinion dejan c was specifically addressing the species here if they are i understand it but there's but we've got all use it as if there were one unitary water project recognizing that there are at least two and maybe more i basically have one water system that we're operating here that has a finite amount of water and we have a number of species that are either listed as threatened or endangered and then we have all these users who need access to the water i don't understand how we can look at this case in a vacuum if that's what you're arguing that we should do absolutely not there's no question that this is a highly regulated project highly regulated environment and what that ultimately leads us to is that it is incredibly complicated and as a as a matter of fact with this biological opinion the reasonable and prudent alternative as as quoted in the federal has seventy two components and many of those components including the one we heard about the raw salvage are specifically tailored to individual species the negative five thousand limit that we're talking about here is not a negative five thousand limit for the delta smelt it was a specific analysis conducted for the sample but it's it's a different analysis but based on the same science i i would respectfully disagree w a similar approach but using a different species and different in training and women in the same water being sucked into the same problems i just i'm you're losing me on the point you're trying to me here in terms of trying to distinguish delta smelt from this case with respect to this case the agency conducted an analysis specific to salmon and well looked at salmon and orca is the central valley steel biological and after operate this isn't so that they get here got all of them and if you're arguing that they're totally isolated unrelated you've lost me because i don't understand how you can do that maybe maybe i can a calendar based limit and it was developed precisely on in trainmen graphs that only we're looking at in training of salmon six months out of the year the projects are very strange or negative five thousand c solely for the purpose of what purports to be avoiding jeopardy to the salmon that is not the same time period as the smell r p i and so what we have actually is a situation of overlapping regulation that actually restrains the the projects even further and i would submit making it all the more important that we insist upon the agency and hearing to the mandates under the law in this case the best available science mandate requires that they use the available population data they didn't use the population data that they had available to them in setting that limit mr sloan what do we do with the i lost count but four five six times that the district court cited to his prior district court snow decision in making findings in this samad decision isn't  actually a record and you say there are two different cases but the district court itself cited to his prior yeah i would like to clarify on that issue with respect to the actual record evidence we do not believe that the district court abused its discretion that it was entirely appropriate to consider actual record evidence that you see there are two different cases yet the district court used the smell decision and the facts underlying it to support his decision in this case  i i would need to look at the specific examples that perhaps your honor has in mind but he definitely did an independent analysis and i can cite even to the instances in the record in this case where he went through the individual declarations he did not accept testimony that he concluded was without all the experts for example i can cite to the excerpts of record three ninety two where the judge said if it's a horse race and it's a matter of our union is better than yours the law very clearly says what the result must be and that is that the agency wins that contest again what would be the point on the complex and technical subject matter we heard from the appellants that on the one hand this is so complex and technical we defer to the agency on the other hand it's not complex and technical enough that we should consider record evidence to understand them the record that that is i believe that is the law and that is frankly the only way in cases such as this that are as complicated as they are that the court can ultimately perform its reviewing job so which is why didn't the accepted explanatory material he would not accept anything that he viewed as a counterfeit a battle of the experts i know i'm running over my time i'm very mindful of my colleagues  please the court my name is clifford lead i am a deputy attorney general and council here today on the have the california department of water resources at issue in this appeal of the operating criteria of the central valley project and the state water project does the evidence in the record support the findings and are the findings rationally connected to the e s a choices me it's that latter component the components set forth in the state form because the decision that we are focused here today we submit that the this fact is demonstrated by the district courts conclusion on the rulings in the biological pinions actions four point two point one the id ratio and can point to point three the inflow export ratio they say quote there is no conclusive study of fishery benefits for ratios greater than two to one i would further cite to the two thousand and five department of fish and game study which can be found on the ex urbs a record twenty five eighty eight  which was amazingly relied on by the united states but refutes the idea of a four to one ratio the council may i ask you the fact that there is no conclusive that it does not prevent the decision of the agency from reasonable doubt when you have numeric objectives this court has made it quite clear that the agency in this case the national and fisheries service has to provide a quantitative analysis to justify those numeric consequences i would refer this court with your position require the e c to commission studies that have not yet been no not commissioned study this but to provide some kind of can we declare arbitrary reaches a determination by the agency that the research should be for one while this board it precisely that in the state in the pacific coast federation official in case where in fact in the pacific coast federation of fisherm case there were the three states salmon protection program for the climate river fisheries no one disputed one national marine fisheries service got the phase three at the species will be fully protected however this court overturned the biological virginian because the service of fail to provide quantitative justification for the specific flows and phases stages one and two this is true where are we today i mean we are in the midst of a hundred year drought that's correct so  what's the current rate one to one i believe because we have a serious drought it's a wonder one ratio yes and are there any stuff is being done to make a determination as to what the impact is on these various there are ongoing studies yes you're on looking at the impact of a one day one ratio in fact the the buy up itself mandated a a long term research program there has been a continuing research program called the analysis dept of management program that they have a very fancy to my mind scientific program where they release tag salmon down the san joaquin river they they measure what exports are high and when exports are low and they determine whether the survival of those salmon are affected by the changes in ratio that is an ongoing study that is occurring as we speak so yes we are and we are engaging for those you know your position is that we should affirm the district court what would what would be the effect of affirming the district court which would then require the agency to go back and i guess in some respects start all over again or at least do a better job of citing to better science to support the ratios that we're  with regard to judge when yours ruling affirming the district court would only require a modest review of my honest review but every time we send one of these things back it takes years before we see the thing again and in the meantime the climate does what the climate does and neither we have what are yours or sadly now drier years and the problem gets worse rather than better be careful what you ask for i'm not sure that what the relief that you're asking is for is going to help anybody well the species then the fishermen in the farmers and the people who are depending on this water to drain there is plainly a crisis situation we have a situation today for the south of the farmers from the central valley project they're going to zero allocations of the state water project only five percent of their allocation definitely serious more the reason that the law in this area be settled and clear and the obligations the agency pointed out so i'm not sure you think that the court is going to be able to do that the scientists and the people who have to live with this system understand far better than jess's well let's take a look at from the standpoint of the forty one rich let us say we affirm the district court's ruling on the four to one ratio the matter would be remanded back to the nationally fisheries service the national marine fisheries service would make a determination based on best available science does the forty one is the forty one ratio in weapon above normal years essential to avoid jeopardy are a recommended action is essential it doesn't use the word essential but it does address whether subcomponents of an r p g a have to in fact provide protection for the species well there's a big difference between saying that the action proposed action scenes to provide protection or is predicted to provide protection and saying that it has to prove that it's essential to provide the text that's why i'm asking that question because i i haven't seen any cases that say the agency has to show that the recommended action is essential they're there they're sitting close federation case does not say that but the endangered species consultation handle that the u s fish and wil regard to forty one the answer is the handbook is a reason and i think the reasoning of the pacific coast federation casework subcomponents of the r t a were not sufficiently shown to provoke jeopardy or adverse modification establishes the same principle ok if i don't see if there are seventy or more of them why why shouldn't this be a cumulative analysis as opposed to a divide and conquer hundred and sixty page biological opinion that it includes what seventy two reasonable and prudent alternatives in order to address all the issues of the agency is wrestling with and you're telling me i'm going to invalidate that entire report on the basis of a paragraph on the agency's handbook well not just the paragraph your honor we say the pacific coast federation of fishermen case stands for that proposition the subcomponents of an r p a have to i mean tends to improve our protect is different from essential to protect well even if you don't follow the services own hampel and even if you use the word contribute and all moved very quickly through this so first the first issue i'd like to address is in regard to the baseline or the effects of the action issue and we think the district court essentially missed the lay of here and before i jump into the argument i do want to make a point about section seven that you know it's entitle inter agency cooperation for a reason and the point here the point is not general fish recovery what the point is is what is the action that the agency is going to cause and what there are not that cause a mouse jeopardy and in this case we have a biological pin more naps actually wrote down what it thought it must you under the say course and when doing so they blew by their regulations and what they did is they did not actually distinguish between the project their effects the list species that were caused by reclamation and those that were not caused by it instead they simply assumed what effects were caused by reclamation and did so without any additional analysis now the district court bought this approach was reasonable and in a vacuum it might be but the problem is your honor that the secretary  rights or even discourse decisions and what we have here an arc and you just simply a case just like national wildlife federation where nymphs is failing to do the work it's required to identify the threatening well you know in the question before the agency your honor it's not whether it is there is an impact here the question is not only whether but to what extent and it's the only way you can identify to what extent you have to figure out what is the world without the action and the world within it and this is why the secretary is right soon when you have pieces that are so small in number and which are very difficult cal i completely agree or honor and that's why it's it's fascinating to reason that the secretary i believe wrote the regulation like he did so that you could determine what the effects were that were going to be a i think he did that precisely your honor to ensure that you would know exactly what's was going what was going to impact the especially because remember the requirement of the law is not this consultation the requirement  into the day is not only consultation but this reclamation must ensure that its actions will not that's the jeopardy or adverse modification and the only way to do that your honor is to of a clearly  identify what the effect is because in developing a reasonable prudent alternative your honor what you're doing is you're figuring out if you have this much effect what are the alternatives that will bring it back to to just the point just the point your honor of not causing jeopardy that the program is not designed to save the world's fish section seven is simply designed to ensure that the action agency's effect on the fish will not lead to jeopardy or adverse modification that's what  the issues associated with seventy two don't change your honor and the question the question with the effects analysis is simply this the regulation requires the regulation requires that the service account for the effect that this court has as laid down in a ruling to make that process work just fine and that that is their recent decision with an r v see and what they say there is the question is the question is is there some discretion to take action for the benefit of this species and to me that implies that for mandatory or things that look like mandatory  obligations the service needs to ask itself the following first is there discretion and second would it have any benefit to the species for example you may have a situation where you're ordered to pump as a matter of law just  you can't but you can decide whether to pump on monday or tuesday but it may turn out that monday or tuesday it doesn't make any difference to the fish that you're going to kill just as many fish on monday as you're going to on tuesday so even though you have a discretion they a that would be a question that that fish would ask reclamation and in this case reclamation provided a extensive amount of information it doesn't look like nips looked at that but if they could maybe it the state water contract award requirements imposed that the sufferer belly project constrains and they do so clearly have those in there but they didn't do any analysis at all so we don't know your honor so obligations on the project and they use words like impose constrained requires and you know what they did your honor there's absolutely no analysis of whether they looked at those and made the call that you're suggesting that they might make but they didn't do it this record doesn't allow us that that requirement quite clear and it says it is their discretion to take action for the benefit of the species and that that is what this agency needs to do is look at those requirements and make that call no generally they would make that call with reclamation but in this instance for whatever reason they decided to assume and the discussions had not been fruitful and they went for going to plow ahead thank you thank you for your time  same as the argument they made in delta smelts they use the same examples of nondiscretionary operations and they did not prevail and i think it is clearly spies that on that issue the point that i want to make was that there is the claim that the ratio for example has no support because there is no conclusive study showing four to one this is beneficial if that were studies that answer all the questions and the way that they use the word essential is not sort of the so will provide an explanation now they're using that as a substitute criteria that says you cannot take action to protect the species and tell you get that conclusive science and not only that we're going to block you from operating the system ever know what would happen if you had a four to one ratio and you know it that's not that's not the law and it cannot be the last the endangered species act is there any impact whatsoever the congress point is on the side of protecting species and it the action agency must ensure that it does not jeopardize and that the final sort of examples that they keep relying on the pacific pushing his case that was a case where the court held there was not enough protection for the species that there was not enough showing that would actually be enough to to prevent jeopardy they have the opposite argument here they're saying and tell you have conclusive evidence to prove this will do exactly you know the benefit you can't do it you decision of this court are talking about the question of whether the section seven obligation is triggered in the first place so that's where the discretion this is non discretionary distinction is important and which clearly we are hearing nobody is disputing that section seven was properly triggered do you do you then just a consulting agency than have to segregate discretionary from nondiscretionary obligations and i would  you have other questions i'll sit down pull i have one one of the briefs talks about the distinguishment between the effects of the action and the environmental baseline as  just discussion i think that that case really addresses that much more so than the homebuilders series of cases which are looking at another question and what w even if you're already going to jeopardize the situation because the environmental baseline is jeopardizing the you can't take further action that will do you've been at jeopardy and that's that may be the situation that we're in here so you don't have to parse it out