restoration project is the largest salmon restoration project ever undertaken in the united states the scale of this dam removal is unprecedented the project has been mandated by act of congress directing the full restoration of the river ecosystem and the native and its native fisheries it's being undertaken at an enormous taxpayer expense this project and all of it significant components warrant the thorough evaluations and opportunities for participate for public participation mandated by law that did not and has not occurred with respect to the plan to flood the river with seven and a half million  year and i suppose an effort to restore native self sustaining wild fish population there's a whole series of procedural steps of the things that occurred in this case and i need to have straight in my what happened or what the record shows and doesn't show the district judge said with respect to your need claims that you're challenging you're challenging only the plan and the plan is not a final action and therefore i dismiss nepa claims fair summary of what that's a fair summary of the way judge settle handled the claims against the department in drag in support of interior i'm sorry ok let's assume for a second that judge said i was wrong which is to say that you had claims other then claims directed at the plan let's assume that the plan is not a final final agency action but you had but you say you had claims directed at other agency actions where you talk about with respect to the department went to department you were focused on dio a right not to correct with the department interior we had claims irrespective of whether or not the fish restoration plan was itself the final agency action it was clear that the agency was funding an implementation i read your complaint and it's not very specific about what those actions are what are the actions that subsequent to the plan by the department of interior you think required nepa compliance right will certainly the funding contracts where the department the secretary of interior entered into contracts under which it determined to fund the hatchery programs at issue here ok so let me thank you can i want to walk through what happened here is there's growing the fish itself have any negative impact on the and the river try to answer that certainly there's effluent discharge from the house or that would help but that's not what you're charging your concerns are in relation to the actual release the actual release right so so  let's assume for a second that it's really the actual release that's the decision that you're you're challenging correct with respect to the actual release what does the eventual two sets of issued by the memphis and the biological opinions and it in the taking what does that do to your need to claim if anything with respect to the department of interior department  position that the the had two actions funded or authorized by federal agencies and here the hatchery programs are funded by the department interior and so it has an obligation to comply with certainly if my rectum certainly department interior participated in the environmental assessment that was prepared by noah fisheries or nimitz and so to the extent that that nepa document was sufficient and actually took a hard look at the h prepare new documents and so certainly the department of and i believe the no issued for its endangered species act approval explicitly encompassed as one of the actions the department of interior is funding can i move backward a second  i'm not sure when fish first started being released pursuant to the department's plan it's plenty of evidence that the that the tribe had been releasing fish well before this occurred when did when harm that occurred to the river into the salmon was putting these fish in it and so my question is when with the fish first put into the river pursuant to funding and plans developed by the department well first of all eleven but actually when the dam removal began but it in some ways predated that because there were so let me ask you if i may now went on something slightly different there was a regional very old from the nineteen ninety s i analysis after the second listing that took account of that list and there was no subsequent environmental impact statement done or in any bit document prepared by the department of interior that's not true i think that in written relation of this litigation eventually i believe the department of interior prepared some sort of tag along document to know if fisheries environmental assessment fonzie that it did here but there was no supplemental yes prepared in relation to the listing of seattle is that take a long document in the record in case i believe it is like i can it was simply a document saying that we concur my recollection was a docking saying we concur with no fisheries that there's no significant impacts that warrants an environmental impacts so so with that let me just finish it your position that there had to be a different supplemental analysis done on account of the new circumstance of the listing of both kinds of fish with respect to the department of interior we have argued that there is a need for a supplemental environmental impact statement because the department of the interior is the agency that's actually prepared environmental impacts that can be supplemented and we we describe various changes in circumstances that warrant a supplement supplemental including the listing of steelhead including changes in the hatchery programs that are actually being implemented and certainly significant advancements in the scientific understanding of the genetic genetics so at a minimum under the there's a statement in the case that when there's a new listing of a sensitive species that constitutes a change circumstance that requires a but but you know i want to focus i'd like to focus on our position that regardless of the department and we certainly think that because of the original documents prepared by the department of interior didn't actually take a hard look at the programs being implemented certainly know a fisheries when it took significant actions in two thousand and twelve was required to comply with nepa when it it approved funding of these hatchery programs under section seven of the endangered species act it approved these programs under section nine of the endangered but it did take action and so tell me why the action that it took violated the act so it it's required to comply it's  there's a long procedural shows i understand you're challenging the fish restoration plan and the are you also challenging the funding or is the funding wrapped up in the i heard you say that  the the fish restoration plan allegations relate to the department of interior and we allege that the fish restoration plan when it was published in two thousand and eight was a final agency action we also allege that the funding and implementation of that program was an agency action that requires compliance and so when we get to the so you gree that the the funds in the biological opinion they express lease say this is also addresses funding so so is your argument that the it was was insufficient that there had to be any i a s that would address the fish restoration program the funding and everything else in my understanding that well that's if we think that the e p a was sufficient they have and we would say all of those issues go away because the e eight was sufficient you know as modified after the district court's ruling on the one right i think that's generally right the twenty twelve documents took the position that there was a baseline that included a lot of the activities a hattrick activities and the like are you saying that that it could not rely on that as the baseline that's exactly right and so you know i want this this issue is addressed in the pit river tribes as united states forest service case where the plaintiffs did not challenge in one nine hundred eighty eight lease in the documents associated with that they were outside the statute of a new environmental impact statement on project specific or site specific agency actions but the court noted that they are the owner environmental impact statement didn't and there's actually two yays there to it said that none of them actually took the hard hard look at the impacts of the effects of leasing and that here the lease extensions were new authorizations that extended legal rights that were subject to nepa and therefore an environmental impact statement was required i want to ask you a question about the i'm clear about what the district court did there are two e v a s here issued by no and then there was one and then maybe a supplement to the city environmental two to address his order on rewrite and my question was as to the supplement called the second the court addressed the sufficiency of that in other words the court made a ruling that there were some difficulties with the with the first if you think there's two and then when the second one was issued the court said well that solves the problem as to the tribe but the claims against the tribe but did the court make a substantive evaluation of the second interview the court didn't make any are you  what i'm trying to figure out i'm trying to figure out what we do with the second one since the district court never saw it you have eight have you challenge the legal action against the supplement is being insufficient we have and we're our position is that here plan describing the way the hatcheries will be operated there submitted to know a fisheries no fisheries approves them under a regulation issued under the four d rule it describes the legal effect of its approval at fifty c f r two to three point two zero three c it says that it's an affirmative defense that must be raised pleaded in i understand that but you're getting finally to the point where i was trying to pin point which is pleaded and proved what is it that would have to be proved how would we know whether there is compliance or not so this is it excerpts of the record to six four to six five the no no issue but what we've turned to limit six approval to authorize the genetic management plans and it describes extensive implementation terms defining what must be complied with in order to enjoy the exemption from liability so that would be a factually intensive look it would be in though those those terms and conditions were not even mentioned in any of the material submitted by the hatchery operators with their motion to dismiss they did they actually submitted nothing with their motion at all so it's it's it's not as if there had been a limitation you can't take salmon except under the following conditions and then that's remote so you can take any salmon you want in which case you don't have to know any facts it seems to me this is kind of the opposite of compliance with the implementation terms but they weren't even mentioned when i understood what the district court was saying and maybe i'm wrong about this was that your contention with respect to the tribe was that there wasn't a valid play in effect for the various reasons that you're arguing your brief and therefore they were taking against the law because they would do should have been a plant did you also use or any argument that once a plan was put into place and let's assume for a second it's valid coming down and our clients were very concerned about the imminent impacts they would have so this was all happening fast but we did in fact supplement our pleadings immediately after these plans were issued in order to allege go to get back to judge question you're alleging that they're not operating in compliance with the plans yet that yes that is alleged and that that issue was never addressed below in part because the plans keep shifting and in part because your your other argument was the plans didn't apply at all because they were invalid the trial court found that they had established that they were in compliance but he the only the only materials they submitted was one declaration with their reply brief th stated in one sentence that they were operating their factories in compliance with the hatchery engine antic management plan which again describes the way in which the hatchery is operated but it doesn't describe the implementation terms actually imposed by lower represented by mr albright and will be splitting our time with mr albright taking five minutes and focusing with the court's permission on the claim against the tribe that you finished up with although i'm happy to answer questions with that about that as well to start with the first issue that the court focused on and to simplify the need to claims against as the court eventually got to i think and just to confirm that the challenge to department of interior sub agency compliance is subsumed by the challenge to the national marine fisheries services two thousand and twelve environmental assessment for two reasons one the e p a the environmental assessment covered deal i sub agency funding and to the dio i sub agencies that issue the national park service and the bureau of indian affairs participated in the preparation of that as cooperating agencies this is  argument that the district court never had an opportunity to consider correct no i don't think that well the district court said you don't have a need a claim because you're not challenging a final action just a court did to be fair consider the validity of noah's you know as no as compliance later on down the road but the district court never said you never had an opportunity to say it doesn't matter because even if you are challenging final agency action or your claims are subsumed in the eventual eventual no e a s is that a fair statement you are correct your honor but the legal effect no i do i understand your arguing we should find  answered it i think the district court was wrong in finding there was nothing for these guys to challenge in other words it perhaps the plan wasn't a final action but at some point after the plan there must've been a final action that was challengeable you agree with that don't you well what i agree with is that in order to bring a cause of action under the administrative procedure act you have to identify a specific final agency action a discreet agency where they said their complaint funding and i think their complaint also talks about subsequent releases doesn't well the complaint was not limited to funding in general or one final agency funding decision in particular and if you look at do you agree or disagree matter what the district court said with respect to challenging final actions right be picked because that be a cover deal why fund so if it's valid then deal was funding has valid need to comply and can't get back to that and tell us why it is sufficient as opposed to having to issue any i a s rather well i think the first important matter is to have clarity about what the action is because there's a lot of discussion in the briefing about certain extraordinary and historic actions the removal of the yellow and lines can go and let's make your job easier let's make let's assume that the action is the release of these hatchery fish into the river there was already any i asked about  hundred s and so it seems to me what they're saying is i read their briefing and maybe i'm being unfair to them is that what we're really worried about is you're releasing these fish into the river and they're going to damage the native populations so i assumed that's the action for finding that the hatchery plans meet the requirements for regulatory exemption from take under the say had no significant impact that is the narrow action that's important given the number of documents to be clear about effects of them well then there was a second in one thousand nine hundred six the implementation yes were and p s as said how are we going to go about implementing this decision to remove that the dams and that yes there is no question at bit i think what you what you have to concede was a rather general fashion he didn't say and we're going to find had a reason really certain amounts and other stuff all the stuff that eventually fonzie addresses so there's got to be some point along the way you have to take is your position how to attack the i asked the second d i s and that anything that occurred there after was not a not action subject to nepa compliance no most definitely the limit six approval and  are perfectly legitimate actions for wheelchair ok so one thing that that i fry from at least a question mark in my mind as it may have no legal effect at all but as i understand it  earlier stated that it would prepare a full house has perhaps in twenty eleven or thereabouts and then didn't and still have prepared the does that make any difference management plans for a variety of hatcheries and they wanted a single nepa document to cover all those hatcheries that was how the proponents of those plans which is none imps it's the state and the the relevant tribes that's how they wanted to proceed later on down the road the proponents of the l y hatchery programs updated and finalized and submitted to nimitz for approval the h t hatchery plans a issue in this case which are uniquely tied to a river restoration and for that no one never said nymphs never said at one point they were going to going to do any i a s and later changed to and so for the evaluation of these always been consistent that and he is appropriate could you address the argument opposing counsel makes that it wasn't reasonable to take as the baseline the existing operation of the hatch es because the the federal agency had never taken a hard look at hatchery operation in this area i would have to response is that one is i don't think that argument is being pursued on appeal and the second second point is this in the environmental assessment two thousand and twelve names included an alternative of no hatcheries it said alternative to is the preferred alternative we're going to approve these h t m p's alternative three we're going to put a firm deadline supplementation stops an alternative for we're going to assume no hatcheries so that provided decision makers with a comparison of the risks a comparison in the benefits and satisfied need requirement for informed decision making what do we do with let me call them the two e a's just i know sometimes it's called the supplement but the district court ruled on the validity of the legality of the first one found a problem and then a second one followed and i don't see the district court addressing the second one other than to say it moots the claims against the tribe what does somebody have to look at the letter of the second one i don't your opponent doesn't seem to have a problem with that if the first one was ok but i'm just it's a strange procedural it is a strange procedural posture and you know the argument is maybe presenting itself are all these claims moot now that superseding documents has been issued i'm not sure if that's where you're well that's where i'm heading and i'm wondering whether anybody has evaluated that that claim before it comes to us no one has looked at the validity of the  requirements and the specific things that are supposed to be done to comply with the plan ok the right so on that claim which is directed against the tribe and not against the federal defend my view the most compelling argument is the sixty day no sort in order to bring a claim under the e s a citizen supervision you get against anybody you have to provide sixty days notice of the alleged violation and the notice has to provide the recipient with enough information for the recipient to try to correct correct the violation and avoid a lawsuit that's the whole permit was the claim here i take it was there is no valid plan and therefore you're not there for what you're doing is not in conformance with the point exactly the first notice was your taking listed species and you have no coverage well the tribe did what any reasonable entity would do it went out and did everything we asked them to do and got coverage the clear that totally changed the legal landscape once nimitz issued that so how do we know that now with the superseding documents if you will there is coverage or is your position that they've never really made that claim well i think how could they make it into were documents came out  and at that point you know the tribe a reason why you believe that they are not complying with the recently issued plan because otherwise they can't attempt to abate the violation and that's why the district court correctly ruled that in order to played as an affirmative defense the fact is it fundamentally changed the landscape and if you think if your former claim was you don't have any tape coverage the claim that you're not meeting the requirements of the new approval is a different cla you're taking fish without a permit and then the defendants got a permit right and you're saying they need a new new sixty day claim it's sixty day priests priests claim in order to put reason why the sender thinks that the tribes not complying so that the tribe can try to abate the violation that's not really moot since that no that's because the sixty day notice requirement is ok it's a jurisdictional prerequisite under the southwest center case and a long line of cases so i think going back to the question of whether the way the two thousand and twelve that's the center of the lawsuit is valid obviously our position is there are no there's no question that is but i think it's important to stay focused on what the action is and that's that's the point of the tearing arguments that you see in our brief that you know can i just ask one more question about the twenty fourteen supplement is that really irrelevant to us because effect and they're not challenging that so is that irrelevant to us or how do we address that right let me let me clarify that even though the issuance of these superseding documents raises the specter of mutinous we have not argued that pla s ruling that they were challenging the wrong plan no the district court found an error in the plan and in the e p a the two thousand and one ordered us to know i'm sorry we're we're we're talking at two different things you do think that we need not consider whether or not the district court correctly ruled that the plan wasn't that the resource management plan wasn't a final agency action because surely there was some final agency action that occurred between then and the issuance of the e s a and you say the correctly complies with nepa with respect to that action i think you don't have to reach the question of whether the court district can take it back to you tearing question or you're tearing point sure there's a yes way back in the ninety's i remember the ninety's and it says part of our plan is going to be have hatcheries and release fish into the river and i assume there's that means that if you're just going to attack that concept that's already dead but surely they can attack the specifics of of how it's going to be implemented can't think that's correct they the decision to good morning your honor your honour's cory j all right on behalf of the defendant officials of lower a walk tribe as counsel discussed plaintiff's claim against the tribal defendants was premised on the lack of an exemption from the take prohibition permit it's an exemption from to take probation they told the district court that to redress their injury what they would like was an injunction to enjoin the hatcheries until such time as nips exempted battery programs from the take prohibition and that in plaintiff's words that would authorize any take that's exactly what happened in december of two thousand as wealth arise any good authorizes take under conditions curre exemption there may be some take that is within it and some that isn't at least in theory for it is it's undisputed in this case to answer the question first before you start me what's undisputed in  theory it's possible that a take would exceed what is allowed under the exemption that is correct your honor ok so why isn't that an appropriate  in this case the government's lawyer says it's because there's a jurisdictional defect your position as well that's not the claim that was noticed and brought so to the answer to judge gruber's question is yes you believe  would prevent the district court from considering whether or not you are a current compliance with and i'd like to distinguish between mootness which is obviously constitutional and an agency can't overwrite mootness with a regulation and an affirmative defense in the context of this case the claim that was played in the six day letter which by the way that sixty days later did not even mention the four programs that are approved it was a very general generic complaint about hatcheries once the take with auk was would have permitted the court to take a look at the question whether the affirmative defense applied or did not apply that happened your honor is in july in two thousand and fourteen seventeen months after the dismiss beginning at forty and explained why in fact the specific allegations the plaintiffs had of noncompliance were incorrect and then they could if they could have brought a claim after that absolutely want a broader claim at that point and they chose not to why because the explanation was thorough and it was detailed and it addressed each and every one of their concerns i don't know why doesn't matter if it's jurisdictional absolutely on because maybe they didn't bring it because they didn't have enough money to challenge it i had an opportunity to bring back claim they did not do it included in this is that correct that is correct there is nothing specific in their original six and a letter about any of the tribes programs there's no history of problems with those programs there's nothing in that notice that would put the tribe on notice that there was anything that it could do besides get a take exemption for their programs which is what they did and if i take it if tomorrow the plaintiffs thought you weren't complying they could fi new sixty day later and proceed from absolutely and with the sixty letter in july two thousand and fourteen if they had filed a case and not accepted the explanation of the tribe in the u s then we would have raise an affirmative defense as contemplated by the rule we have a forty approval in place and we're complying with it which is exactly what we explained to them in our response letter and sort of the u s and they chose not to bring that claim thank you counsel thank you very much for your view of two minutes f thank you one up pick up where we left off here it is it is not a violation of the endangered species act to disregard the terms and conditions of the forty approval incident take statement it's only a violation to cause take under section nine of the endangered species act this is made clear by the supreme court and been at the spear that a defendant remains a liable to section nine it is not so we  the notice provision requires that we give notice of the violation it is not a violation to disregard the requirements of their approvals instead those are affirmative defenses but isn't in the whole purpose of the notice least one of the purpose s is to give the give the party that you think is doing something wrong the opportunity to fix it the supreme court has interpreted the requirements of the clean water act to imply so you say to the tribe and to the into the federal defendants there's a problem here they're taking fish to make taking fish and there is no there is no it's federal federal authorization to do so forgot which of the various documents that and they say by god you're right we go to the fifth let's go to the federal government get one and they get one now it's not a very different claim the say now that you have one you're not complying with it because if you tell them that and you tell them why the way they're not complying perhaps they change their their their ways to comply with it they don't strike me as two very different claims our claim is the same our claim is take their defenses are different they now have an affirmative defense where they need to establish that they're in full compliance with the terms and conditions so the defense is certainly changed but what is your response to their argument that you could just send another letter now and that would satisfy the jurisdictional requirement and half absent and i think it's and lettering that that sort of rule would really undermine the effectiveness of citizen suits like this and that's why this court has twice held the first time in natural resources defense council versus southwest mari and then water keepers that subject matter jurisdiction is established by providing notice adequate on the day that is given and so sure we said when we gave notice that there is no authorization whatsoever but those cases hold that we're not required to provide subsequent notice for the court to retain jurisdiction based on defendants post compliant office but but here what we have is you complain about something it gets fixed what you complained about got fixed you said there's no  another complaint that i haven't heard about before but it but but again we did supplement our claims to plead that there is noncompliance when when did you supplement shortly after the six approvals were issued i can point the court to the docket i don't have it  opposed by the defendants at all do you have to present any evidence that they're not in compliance it's an affirmative defense that the defendants need to establish what you can just make an accusation and they have to come forward with evidence that they're in comply the only violation is is take in violation of state that's my problem here is your first allegation of illegal take was because they didn't have i know it's not a permit that they did have a permit  supplement what do you what do you base your supplement on that they're not taking in conformance with the plan well again that the defendants they didn't they didn't allow have an opportunity to discuss whether or not they were complying with the implementation terms they immediately moved to dismiss without any stop but i'm asking is it just enough for you to say i lead my in my supplement of my notice assume that a new notice and i supplement my notice just to say you're not in compliance with the i don't see any any reason why or anything else is that a sufficient to trigger to them the burden of showing compliance the way the regulation defines the legal effect of the four day rule and it defines it as affirmative defense that we that they must plead in so all you have to it's like the primary essential is you're taking face shots and then it's up to the defendants to say yes but we have an affirmative defense we're taking fish but we're allowed to because we're in compliance with the exemption you corrected they they moved to dismiss before there was even opportunity to discuss or evaluate whether or not there was compliance with those let's assume that the judge erred in that respect just for purposes scrushy what are we to do with the fact that you then file a subsequent notice raising precisely that issue they respond and you don't go is what's the effect of the fact that you subsequently brought a notice never proceeded on and i'm not sure there is any legal effect we decided not to pursue it because we're confident that the disher court erred in dismissing the claim based on your saying it was it was protective in you know we were evaluating litigation contingencies and it was part overly protective ok thank you