the petition for review is challenging the biological opinion and specifically the no jeopardy finding of a biological opinion you should buy the national marine fisheries service with respect to a license amendment proceeding before the federal energy regulatory commission the listed species under the endangered this is the subject of the biological opinion is the gulf of maine distinct population segment of atlantic salmon and the biological opinion specifically addresses the k river the problem that was before the service in the section seven consultation is that there are four hydro power projects on the kennebec river  beginning at the city of waterville up river from the head of these four projects completely impede the sea run migration of the atlantic salmon and the critical component of the recovery and survival analysis for the species is that if did you piece these pending in the district court in fact it was by that time it was with the first circuit a direct challenge to the biological opinion under the ministry of dismissal for lack of jurisdiction in this section eight twenty five l b exclusive jurisdiction provision that is your argument that because you made clear the nature of your challenge in that litigation that therefore you didn't need to reason specifically for for well what what we did before because the problem here is that the commission cannot change the biological  so if the challenge is to the no jeopardy finding to the biological opinion the commission can't alter the by any aspect of the final agency action of the service actually read that argument directly to the to the statute the section eight twenty five will be exclusive jurisdiction statute the requirement is that the the objecting party urge on the commission the objection we contend that we did in fact do that when we were making objections and comments to the license order we submitted our full complete district court petition has an annex to our objection and said this is our challenge these all of these issues are our challenge to the biological opinion  commission then issued its order amending license not addressing any of those challenges our application for rehearing that requested again made note of the fact that we had objected to the petition that there was a pending direct review action in the district court and asking  the commission to defer ruling until in the event that the district court took jurisdiction over our direct action and so in but they don't happen and in fact he agencies said that they had done an independent review it's not just that they the agencies position was i'm working on my wrong no agency said we did an independent review  specifically with respect to our challenge to the biological opinion which is that the no jeopardy finding does not rationally flow from the from the facts from the effects of the action and the  environmental baseline in that respect the commission also said that we would be undermining the consulting agency's expertise were it the question is as a matter of form should we have again on the application of rehearing and next are arguments and issues laid out in the petition for review that was already pending put a statement of issues heading on it and asked the commission to undertake that review jurisdictional questions are more than a matter for are they i mean i think it least what i'm concerned with is and what my suggestion was is that the the question of our having waived the urging the issue on the commission may have been a much maybe a matter of form the statute requires that we urge our objections on the commission and but there is also a provision in the statute that says unless there is reasonable grounds for failure to do so and so even if you hold us to so what would be the reasonable grounds here all number one the commission could not change the biological opinion and this is really a challenge to the services final biological opinion in the first place and by that i mean never before to our knowledge has the service in gauged in a it responsibilities under the two issue of biological opinion is finally agency action but in doing so has essentially said we will issue an interim biological opinion nowhere in the statute does it say that the service can say this is what we paraphrase and this is what we kind of think about jeopardy right now but let's wait and see for seven years let's let you design it matters not what the commission knew or should have known at the time were limited to the four corners of the request for rehearing again i i i would i would suggest that the statutory language of section eight twenty five b which contains the reasonable grounds exception and also the statute requires only that are objections be urged on that's the actual argument is that it doesn't matter what the agency knew or didn't know whether it was that this was an issue or not again we would suggest that there would be where you have already clearly urged the objections on the commission there's no dispute that the commission knew of those objections and the objections were annexed to the original  n and you have a pending petition for review also the other issue here is this court has also been clear that one cannot ask the agency to reconsider agency action while there is a pending district court order pending judicial review action and so given those that was another reason in our thinking that we need to at least let the commission know when our application for rehearing that we are challenging the biological opinion we reference the challenge that we have made and i stick to it and  the holdings in that case on the merits or holdings into which this case fits neatly because the error that the service undertook in the biological opinion is  quite similar yes alabama power was a relicensing a full relicensing decision this was a modification to the license but the license is still to water just ask for a future if you come across a d that might have been sufficient in order yes might well the commission didn't have the opportunity to pass upon at that  the commission's procedural i would say your honor that it's not different that there is this ongoing litigation and again that's that has that first back to this court case in indiana and the commission so had they your honor no your honor no one corporation i reference that would require that the commission look to the underlying document which in this case was a protest so i would say no your honor in this case july two thousand and thirteen and submitted on the commission record the main environmental groups and others specifically filed all of these challenges in july of two thousand nothing happened for a year on the commission's record we needed to challenge these no jeopardy findings so it was then by july of two thousand and fifteen which on the authority again of sciences suggested that there may be a right under these circumstances because we're challenging the final agency action of the service  commence a direct petition in the district court two months later in september of two thousand and fifteen was when we filed our objections again on the commission record  to any incorporation of this biological opinion in an order to modify licenses and that's what we annexed our judicial review petition the the  commission's response to that was not to respond as a matter of it is a matter of for if we had refiled again in our application for the hearing and acts the same set of arguments put a statement of issues heading on it realistically the commission would have done nothing the commission would not have the purpose of urging the objections on the commission so that the commission can can change its us yes yes but the the the theory behind it is that if the commission can can correct its own errors you may obviate the need for a judicial review or if it refuses to correct and in again the the reasonable grounds for failure to do so provision i think just as a matter of statutory interpretation of counsel against that had  you how does that how do you reconcile that with the language you just garland read from the indiana regulatory case i mean when i when you and i spoke before said to work with a reasonable grounds and one of them was that because of the commission would not have had the regulatory power to correct its own ever and not issue as under the come up the survey save our sebas the cook makes it clear that the point of that reasonable grounds provision is to to make sure that if the committee a commission is alerted to the objection and has a chance to correct its own could i thought had had also set up an extraordinary circumstances type and now this is something that's quite correct and there's to give you only two examples one is where the agency change that the bio then the reasoning of wisconsin power might rise that would be reasonable grounds right or section eight twenty five they'll be especially when those challenges have been submitted to the