conservation to this group i intend to reserve three minutes for rebuttal today i will discuss three issues st i will discuss the improper use of an incidental take statement which is based on a consultation process the endangered species act as a find you know of unlawful take in a private citizen suit which is governed by section nine of the us in particular i will discuss the burden standard under each section and the standards actually based upon the language in the two thousand and eight biological opinion next i will discuss the challenge the evidence and the prejudice suffered by united as a result of its improper admission and finally i will discuss the regulatory agencies as indispensable parties in particular i will discuss the facts of this case and the application of hammersley with respect to the incidental take statement the equation of an incidental take state with a fine in the two thousand and eight biological opinion with the finding of taking twenty eight teams is at the very least a mix question of law and fact which must be reviewed to know what this is well novo and we've got extensive factual do we not go so those we have to review for clear error and then the question is whether or not on a noble review the law was properly applied yes your honor the question is whether or not invoking an incident will take statement here at which numerous witnesses testified and a lot of documentary evidence was introduced is your argument that the evidence does not support the district court's finding of the tape because it seems pretty compelling to me based on the historical records concerning the migration and the population of the steel well our position is your honor that the admission or the finding of an incident will take statement which is issued under section seven as the same as it as a finding of actual take is it is an error of law but that is where do you say that he did that as opposed to because language of the statute but what is the language of the biological and biological opinion often use the language such as expected what is expected expected isn't it's going to happen but why would it still be relevant regardless of whether the legal standards there are these were whether it was expected or whether there may be a take why isn't it still relevant to the question why can't the district court say i want to know what the government's found on this seems like did the dischord did the right thing and called the agencies in and heard all the evidence and seemed to base it on a whole lot more than just your argument seems to be so myopic on whether this actual document was considered but it was just one of many things i mean i think you're right if the district court had said well read this document end of story maybe you'd have a stronger argument but that doesn't even seem remotely close to what happened here and maybe i don't want to jump ahead to prejudice but i think that's really where i'm on up is even if there was a technical violation as you're arguing where's the prejudice there's are you really doubting or you really arguing that there was there's no take going on well your honor reviewing the critical findings of fact which are contained in united's water diversions that v f p have resulted in harm in a manner fairly traceable to united which constitutes a take under e s a and then he goes on to lay out in great  detail the supporting evidence and not only including the biological opinion but also the testimony of the opinions principal author of the evidence from the two thousand sixteen draft habitat conservation plan i mean it's the letters between the yeah i mean it just goes on and on and on so are are you asking us to find those those finding month not credible or not supportive of the record your honor what we are asking for and that the fact is that this inadmissible evidence affected the trial court's decision and that's what the harm so why is a public report issued by an agency whose duty it is to regularly prepare and issue such reports on which the agency relies not admissible under the public records exception of the federal rules of evidence thank you your honor with respect to the biological opinion the biological opinion was issued almost ten years earlier and what we know and got worse not better right well you argument as stated in the briefs was that the conclusions of fact which are supposed to be what the it sorry apologies eight hundred and three subdivision eight is supposed to be very limited based upon the legislative comments now what happened here is essentially the entire biological pinion was admitted for the truth of the matters asserted now we've contended in our briefs that that was not a proper but that he then went on and he started there because that was two thousand and eight but then he went and updated and or or went through a substantial later evidence as judge nelson says that things can get better they got worse and so he was certainly wasn't relying on what was the fact situation two thousand and eight is the end of the story well your honor i don't know that it's necessarily correct the things got worse rather than better i may not be necessarily correct but he went and looked at that question based on evidence from substantial and extensive evidence after two thousand and eight well your honor again just reviewing at the statement of decision that we have i don't know that the record actually supports that that he's citing additional evidence beyond two thousand and eight but he has cited was why can't he look to subsequent operations of the dam he heard testimony as to the effect on migration for the entire period two thousand and eight up until the court issued this incision and one hundred and eighty one and basically conclude that the top of that page that these takes will continue and that absent intervention by the court essentially the steelhead are going to be eliminated if the court doesn't  comes to the conclusion that the inadequate fish passage and the f t actually kills an entrance and steelhead this take us perpetual and ongoing and so on so how can you say that he was if you included the biological opinion but right but again those were past operations and what we are contending is that exactly what judge tallman is suggesting the courts should have done which is looked at the entire past operations subsequent to two thousand and eight united implemented a number of improvements after two thousand and eight to the existing fish latter who the existing fish ladder you can't can i just take a step back why don't you just build a new fish latter link it seems like everybody agrees a new fish ladder needs to be bill and maybe i don't understand how much a fish ladder cost to be built but you're paying if you lose your paying three million dollars in attorney's fees so that's money that could have been well spent on a new fish ladder so help me understand what's going on here is this just you just trying to no your honor and i apologize that this your question requires me to refer to go ahead information that is not inside the record but at the time of trial what we were looking at was a hard and rampal target of which would cost about vertical slot alternative in a gated notch alternative the gated notch alternative is highly experimental further analysis and study made it charmin that it wasn't viable so now we focused on two alternatives the heart and ramp why are we spinning our wheels on this litigation and maybe the answer is because nymphs i had sort of wondered why they're not here i almost would have liked to have mears amicus to tell him do your job mean that really is what needs to happen here and my assumption is plaintiffs are frustrated because number isn't doing its job hasn't been doing its job has allowed you as the dam operator to to be operating effectively without the proper regulatory requirements for the last several years and where i mean they seem to shown an imminent harm that's going on but if there is no imminent remedy to that harm can you actually get i don't think you made this argument but i'm worried that the district court may have overstepped its bounds on awarding an injunction in this context and how i mean he tried to be very careful but it raises a really novel issue here that i can understand your concern about being bound under so is instinct was exactly right that he wanted them there he did the best he could got testimony from the government agency but i think your indispensable party argument unfortunately is a loser because of the sovereign immunity argument but because we do need approval we need approval for the relief was provided i mean in other words he recognizing the problem he  sure that you got sense we're calling it the appropriate plans and applications and that is a remedy i don't know why it's not a remedy the problem here is that there's been in or and into law and what feet i suppose but that could at that point at least you'd have the possibility of an a p a case against the agency if they were not if they had the right it doesn't look like there's a indispensable party problem and i think change nelson's asking whether there's a separate problem as to whether this kind of relief is somehow wrong for another is that you haven't made another argument that well your honor as far as we could determine from the legal authorities indispensable party is really directed at that issue and if i could just moment for  for a moment has a question though about the could they seek damages under the citizens supervision your honor they did seek six million dollars in compensatory damages which has been ruled on it was denied denied that was what what was the basis for the denial if there's take suspicion toward injunctive relief why isn't there take sufficient toward damages i don't recall the exact reasoning of the trial court because it hasn't been appealed so it's been final but i believe that he felt that he couldn't award that monetary relief i think that judge carter's determination was that really all let's just solve our problem going forward us was in that area because these particular intervention had standing because of their interest in this deal but they were economically or in any other terminable lantern correct your honor and i would just like to point to the judgment because i do think that it address some of these issues that were raised in a why even if there's an indispensable party at excerpts of record page one hundred and thirty one of the issues has been stranding and handling of steelhead when they become stranded and i'm quoting from the judgment here it says because united must require request long beach assistance and supervision when stranded fish need to be hauled or handled shelve respond promptly to a request for such assistance and with respect with us and that's a part of the injunction that is part of the c that is did that is where i'm concerned is i think it's clear that the discourse had authority to order you to submit an application and i have not gone through the injunction with the fine to there are actually sections but but what you're pointing out to me actually does give me pause and there is another section of the judgment of the injunction which is directly targeted to the designs and modifications of your honor it says that united shall complete  and one hundred percent design sufficient for united to quote meet mrs directions for the detail required for an adequate habitat conservation plan for one the heart and ramp alternative and to the four hundred and one dollars notch alternative pointed out why isn't a remedy for that suit by united against new and challenging what is presumably this would be done in connection with seeking an i and unfortunately on a that's probably where this will be headed after this decision the but the issue as far as if you haven't even filed the application yet has still we're still working through the engineering and the hydraulic problems is not that issue is not ripe yet for us to rule out well as far as the court's order requires these things by a certain time line and require that the court says you can some back and seek a modification did it not and is requiring one hundred dollars day status reports to the special master to keep tabs on the progress and united has been submitting those one hundred and twenty dollars day compliance or have you gone back to the district court to ask for any extensions of deadlines or other relief we have not gone back to modify the injunction your honor because as we reviewed the legal authorities while the appeal is pending there is no jurisdiction for the district court to modify the injunction for you sit down there was a significant amount of briefing post briefing with regard to a dispute over what exhibits were actually admitted in the record and my question is why did you not pursue  trial and it seems to me the rule speaks directly to resolving that issue the onus is on the parties to go back to the district court and settle the record and apparently you didn't do that neither side well yes i apologize for that your hon but i don't know how we can do it because it really requires the judge who was there at the time to say this is what i admitted in this is what i refuse we did submit a post trial exhibit list on january th after the conclusion of the exhibit of the trial testimony that's what we are relying upon rely on any of those documents i don't see the district judge relying on any of those documents and it's a statement of dissent why does it matter because those were exhibits that plaintiff's right i understand that but if he didn't rely on it it's it they're not relevant to our terminations as to whether the fight factual findings were clear air are not so i don't know what the relevant well that was plaintiff's contention that these additional exhibits could you point me to the language was excerpts of record and that's it's on the record page thirteen but on the actual docket number it's by hand i mean ok and lines twenty three dollars through twenty five and on the nd the subsequent excerpt quoted from was excerpt of record page nine of that same document number which is page five of that document and its lines eleven thousand three hundred and twelve and there is a subsequent provision of that on that same page which states that it is it is requiring nimbus is a number says participation and approval in the design process how this usually works wrong or is that the applicant which is united in this case works with nerves to try to come to some has made as as this court has has pointed out and just record judge carter in the course of conducting an eleven day trial and hearing sixteen witnesses and proceeding to write one hundred and fifty two page history court decision we two hundred and twenty two separate separately numerated findings of fact clearly didn't rely exclusively on the biological opinion that was that united conservation district is challenging  the i think one of the key documents is this two thousand and ten fish panel report and it was written by a group of fisheries scientists that were retained by united water conservation district and here doing that you're doing them says job for them that's how i read this we agree with you your honor and that's what judge carter had to say as well and he said it during the trial he said it in but that's troubling to me because the regulatory agency the real he wanted names to participate and he wanted them to participate for good reason well they sort of did because they came in and testified it and what did they do or did they just come in and say yeah we got a real problem here other's take going on we're looking the other way but we hope the point of so  get that would not be exactly what they had to say and i think that they were very helpful to the district court and i also just to back up i wanted to disabuse when did they give a reason why they weren't taking action effectively you have i mean i don't want to say too harshly but it's an elite illegal operation going on right now and memphis isn't doing anything about it did they explain why they are indirectly and what they had to say is i  used to work for the u s environmental protection agency for fifteen years and and i was well familiar with what the phenomenon the bureaucratic phenomenon that they were talking about as well and they're from their point of view and they were clear about this in their testimony you know on the record the burden is on think i read this letter and they sort of said hey get us something we're serious about this yes well even more than that they said particularly with your water diversions we think your water diversions are taking steelhead unlawfully you don't have section ten authorization we've give an extreme point so essentially that this it's this injunction doesn't work that's a background possibility i think that that's absolutely right and that's what we said when we  filed a conditional motion for joint pretty much a judge carter's direction and the government had made it plain through a letter to the judge carter that we don't think he we can be joined in voluntarily and we don't want to join so  which i think is actually defensible position but it puts the burden back on the plane you know the plaintiffs effectively to maybe sue them under a waiver of that sovereign immunity which is an e p a climb and have you thought about that or we haven't we briefed it and where i mean you haven't filed one no we haven't i don't know because there's no final decision which is the problem here it would have to be in the nature of a delay  think that's right is there any possible utility and having our mediation people who are terrific sitting down with the till a few and seeing where there is anything to be done or is the problem exactly that and this in here that's not going to get anywhere well i think that's a very important question and i would point this out that district court judge carter is a very forceful individual certainly and we know him and he ordered us into chambers more than once and did his magic gage in a group hug at one point and threats on the other end of the spectrum to try and get us to work it out he's also appointed a retired judge judge smith to oversee a special master process also on the record with the same intention i want you folks to try to work things out so there is a judicial process already at the district court level despite this being the dam to seek a permit from dams what i'm concerned about is as it goes further and i i don't think i i think judge present already made the point that you are now i probably doesn't impose a burden on  but you are thirteen seems to where it says nimbus shall respond improv promptly to a request for such assistance how how would the district court does discord have authority to issue an injunction i case where a court referred to the ability to bring in rd party and even though there was no claim against them because the relief that they wanted to consider between the actual parties  isn't a waiver of sovereign immunity it's not  it's not a waiver of sovereign immunity i would agree with that but it i think that this much that the already sacked extends authority to the courts it's not well i guess that i back i back up i mean i said i was where i was going to go is it's it's  not us in that setting suing the federal government which would obviously implicate sovereign immunity but if the court were to bring in a rd party and say i need you here and i'm in there any other provisions in there like that that nymphs is ordered to i mean i guess it's really a question for for the other side but do you are you aware of any other provisions in there i mean i'm not in this is really the might very much a subsidiary matter this is not this is not the hard right you wouldn't have a lot of heartburn over that anyway because that you get ninety five percent of what you want from the junction that's absolutely absolutely the core the core the core issues are too full of it's it's one that we're in freeman dam blocks the migration of steelhead and there needs to be a new fish passage structure the people that united has hired for for decades have said that repeatedly united doesn't contest that and the number one it sounds like they are trying to do it i can't w in on how expeditiously it is something like they're legitimately trying to good faith i mean you work for the government you know these things can get very difficult i mean not just after you apply but even before you apply trying to comply with all of the regulations so i don't know how to assess i mean that's for the district court to determine but it is your sense that things are actually starting to move forward well yes and no the united is definitely spending significant money and they've they produce very valuable and allison reports but they are fallen short in that they have the injunction is crystal clear ordering united to do physics one hundred percent physical modeling and design of two alternatives a hardened injunction they're they're proceeding with this vertical slot now the vertical slot was one of the four options that judge carter ordered them to study but he was unambiguous that the vertical slot was to be studied to a lesser level just to meet the alternatives analysis fo percent this is my concern does it can a district court get that specific to order them to follow a specific mechanism when imps what he can order them to do is submit something to them and the next can determine whether that means the regulatory requirements he didn't order them to submit any one of those four alternatives he ordered a process you know study these four alternatives two of them to a lesser a greater degree but that's at that's sort of my point what what basis does he have to do that when they should be able to go to names with something and get that feedback from lamps that discord on the front end should be able to say in my opinion this one doesn't work under the regulations  figure out well here's here's why what judge card did was appropriate it could if it was a legal issue as to whether or not a particular proposal was a reasonable and prudent alternative the district court would be able to resolve that question as a matter of law presumably looking at the cost of that particular design i would agree wholeheartedly with that and add judge carter didn't come up with this women without careful consideration and reliance on national and fisheries service i think judge nelson or your honor your point is well taken that judge carter shouldn't be out on a limb of his own but i think he was eminently recognized that he's not a scientist he asked for an instance guidance i mean he had he had our expert is this the agency's preferred reasonable and prudent alternative was a two way it was both for the water he asked for an amicable brief from from him since he give me guidance i mean i've got i've got dueling experts here saying which is which of these fish passage alternatives seem the most viable and united has been stalling and  i sense whether they would voluntarily appear at a mediation if we asked them to my sense from everything that i've heard from them and we've actually suggested that is that they are disinclined to do that they're actually here in the courtroom and emphasize that to the extent that united argues that judge carter committed reversible error in allowing mr speed and mr brown back to to testify at trial and then accepting the biological opinion into evidence that these that these are meritless  and that some of the representations that they make to support their argument are just not true the idea that mr speed and mr brumback were somehow our witnesses and therefore we had a duty to disclose them i mean the record is  over and over again this this was judge carter's idea not not not ours he surprised both parties at the summary judgment hearing when he said i would like to have come testify because this is a really complex matter what the court is authorized under the rule to to appoint expert witnesses to completely yes yes so i just wanted to be clear that that the record indicates that united seems to suggest that these were in effect are witnesses for our conditional motion of joinder that i referred to earlier we actually represented to judge carter that we thought that just anthony spino should testify not to run back and judge carter had both of them testify over and contrary to our  likely he's going to he was going to want them at the trial so we farewelled just have a complete record we should we should put them on our witness list and in terms of like disclosure rule twenty six obligations we clearly had no duty even if somehow you could construe them as our witnesses we clearly had no duty to write rule twenty six reports for these individuals they were not specially retained by us to testify as experts a trial and at most rule twenty six would say to someone who for whom expert reports  not necessary that we just need to give a summary of their expected testimony a list united had the biological opinion right it essentially had their report it indeed and that's what they testified to and that's what they testified to that's correct and they testified before you sit down could you help me with this dispute over the record and whether or not all of the exhibits that were admitted were properly before the court yes i think that  i think that's not entirely true most of them he did not most of them were like these were things that were our bruce and he cited other other things not but there's one or two that i think he did cite to you and i thought not ye the parties have conferred on their every document that's been marked on the exhibit list is into evidence except for three that he specifically read into the record i read all of that but now there are dueling declarations here i mean if that's the issue that we really need to resolve in order to decide this appeal we're going to have to send it back to the district court and say you resolve it well i think that's definitely not the case there are the you know the tip of the tail wagging the mean there's a wealth of other evidence the two thousand and ten fish panel report the years of correspondence the testimony of anthony spino who wrote the biological opinion this is ok thank you very much and thank you for your he you know the basic problem the names not being here is there any chance they would come and well your honor as my opposing counsel has stated there is a special master appointed judge smith is supposed to resolve issues we've invited members to participate with judge smith we have not yet received a response from them so i do think it is valuable absolutely your honor as you're suggesting to have the parties have a mediation with nimbus whether or not they will join voluntarily i can't i'm just a little concerned about injecting further delay here i think it might be more helpful if we just give you an answer to the appeal and you all get on with doing whatever it is that selected our preferred alternative the vertical slot remove just not one of the ones he counted on to study not one of the top two and that's the order that's the issue your honor that judge nelson has to go back to the judge and asked and ask them to change the injunction well your honor again based upon the legal authority that i've reviewed yes the court has the ability to enforce as an injunction while the appeal is pending but not modify the injunction while the appeal is pending so that's the issue of your honor and i just wanted to touch on the that a comment the judge home and made about the r t a one excuse me the fish passage the biological opinion was clear that it was not dictating which design or which criteria needed to be set forth in the alternative at the time there was a rock rap alternative that we felt it's really wanted and we said that's not going to work it was clear that it was not dictating any design criteria rather that there was going to be a process because as your honor stated there are a lot of moving parts here that we need to figure out no one wants to build a dam and have it fail that's absolutely true one hundred percent of the purpose of a biological opinion is basically to assess the impact of the dam operations on the he just took direction from mrs m a case brief there wasn't a whole lot of testimony on what was the best alternative moving forward scientifically because with their extent he's just haven't been completed but now we're in a position where we feel the vertical slot is the answer there's about thirty of these vertical slots on the west coast it's a proven alternative it's not going to be in the river it's not going to fail when there's sediment and boulders rolling down the river that's absolutely nothing in the conjunction prevention from making the application based on that i believe that but it does require you to study the other two and that is an issue that i raised in this at this argument here is that that provision appears to vest with the decision of what is one hundred percent design if we're talking about shovel ready designs that's going to be years and we're never going to meet that alternative we submitted an action plan to the water in june years to get show her a design shovel ready designs because that would involve physical modeling of the experiment all transit is not that's not that's not what we want to do either we are we have to you've been you've already been upgrading for twelve years basically without a permit now you're telling the corps you're