understand your honor decked him because we're not going to protect him i mean we'll try our best to be fair but when you divide your argument up it makes it tough i understand your honor we're here today interview of a plane junction entered by the district court granting the extraordinary relief to plaintiffs who seek to prevent federal agencies from improving the status of an endangered fish this is a strange case i was trying to find others normally we have a federal action it's taken for some other purpose and we try to look at its effect on endangered species is there any case that you're aware of that involves the federal government undertaking remedial action and the challenge being that it's not sufficient not exactly on point no you're on i think this is absolutely a unique case what you have in this case is not federal agency  action seeking to mitigate the harm what you have is an existing we're that all the parties including the district court recognize that the existing we're prevents these fish from swimming upstream yes i'm trying in looking at the case law and i want to ask your colleagues the same question trying to find a case where the government says we recognize that we have an endangered species we want to make the situation better and the argument on the other side is what you really haven't made it better or you haven't made good enough is there any where would i look for for authority on that point yes that's my point your honor i think that this is a unique case what the cases that we cite in our brief i mean winter itself talking about irreparable harm the alliance for the wild rockies was another reparable harm case boardman was a decision by this court but but what i think you have to start with is what is the situation and what are we seeking to do and in this case plaintiffs are seeking and sought and received an injunction that prevents this project from going forward so you have to look at and this is what the district court failed to do you have to look at what is the action that's being taken and it's unequivocal unequivocal on this record that the action that's being taken is improving the situation on this record let's assume the government had decided instead not to do anything with would it would violate would that be a violation of any federal law so that's the thing your honor the well i know it's the thing i know endangered species act had existed as of one thousand one and congress supported this money and said we're going to create dam then yes that but your position is that because the weir is existing ours is existing any governmental action has to make things worse  in order to sustain an injunction to create irreparable harm has to make the situation worse and so far as making it worse the fact that there's a period of what two to three years where the salmon would be able to return or go upstream would that have been a basis for the court to find the fact we had a worsening first of all your honor that argument was not made before the district court plaintiffs never suggested that the interim two or three year period somehow created  appellate brief but to answer your question your honor no and here's why we talk about this in our brief it's too speculative so the existing high water side channel the existing channel it only passes fish seven to ten days every year that there is high water and the high water has occurred historically every five to ten years so it's way too speculative to somehow suggest that this high water event is going to occur between march  july the spawning season for the palate sturgeon there is going to occur this in twenty eighteen because the plaintiffs themselves tell the court that the district court's going to resolve this case by mid twenty teen so you have to have that harm occurring during that time but it's not just that your honor it's not just that it's too speculative it's at the federal agency specifically recognised that there may be fish that swim up to the existing we are seeking to spawn seeking to swim up river and what the federal agencies have done here is they've come up with a catch and haul program so if there is a fish that shows up and tries to seek to swim upstream the government's going to catch this fish and carry it upstream and allow it to continue to surge allan's of that that it was to would swim unclear lack of environmental impact statement and it talks specifically about this program and actions that the federal government will take to minimize any harm to these fish during the construction period but it's also important to recognise that it's not just this interim period what we're looking at is the long term solution here for these fish and what the fish and wildlife service and its expert biological ping in concluded as when this project is completed what you'll have is a permanent opportunity for fish to pass and when it looked at this it looked at the existing  channel the existing site channel it is available infrequently now i understand here on appeal plaintiffs are lamenting the loss of this side channel for the two to three year period but the point is that bypass channel the construction of this project on this record the specifically concluded that it will substantially increase the likelihood of survival and recovery of this species now i understand plaintiffs want an open rear we're open river with no we're and i  understand that they think that more fish will pass and guess what the agencies found the same thing they recognise that they said yes in fact if we were in open river more fish would pass but it's important to focus on what the other one of these preliminary injunction judge smith just reminded briefing and i think it's important to recognize that any challenge under the endangered species act underneath and under the clean water act the district court we see this in our briefs both in our opening brief you know reply brief the district court is bound to apply the substantial deference standard of the a p a so what you have in this case is you have a district court that said that plaintiffs based on their arguments have demonstrated substantial likelihood of success on the merits of their claims and we say this in our briefing the district court failed to apply the deference that is owed to the agency's decisions and we talk about how the district court employments substitute their judgment for that of expert agencies in this case one that's legal error what harm will be for the government or the or your colleague here if the status quo if if the status quo remains in effect while the case is tried what harm will be for your side of the so to be clear summary judgment motions and all the briefing has been submitted the district court has scheduled a summary judgment and maybe there won't be a trial so i'm asking right tween now and a time that the district court disposes of the case in its entirety what harm will be for all you represent the united states that's present what harm will be for all the united states as a result of the preliminary injunction we are enjoying from in from proceeding with a project that unequivocally will will improve the situation for these endangered fish and the government and the agencies have cooperated with both interveners they've cooperated with other advocacy organizations in montana seeking to find a way to improve the situation for the session argument that you've done nothing wrong and i understand that argument i'm really here trying to figure out with a district judge me finished with the district judge balance the equities and the question is what it quickly is on your side in terms of the policeman or injunction right so that we point out this is not going to notice the same question that because it seems to me fish will die while the preliminary injunction effect or not it affects but from your side what's the harm right so we talk about this the we talk about the endangered species act endangered species act it clearly congress sought to protect endangered species that's what the federal agencies are doing here and to your point i think that the reason why we're here the reason why the government appealed this preliminary injunction is because the district court erred and abused its discretion below one end of this injunction and because this is a purpose situation that's unique where the government is seeking to help the species allowing this decision to stand you're going to create a whole new class of it's not good enough litigation and that cannot be right it cannot be right the plaintiffs get to come into federal court seek an injunction to prevent agencies from improving the situation for these endangered fish thank you well you're on the other side oh sorry the very real consequence of that is this is a this is a bureau of reclamation facility and the project is being funded the corps of engineers funds are funds that are going through the corps of engineers those funds will not remain available if  the government wants to is your client better off if the project is allowed to go forward and struck that is yes why because any we will have ensured that the irrigation water is still available it's available now and we will have hopefully if the project works as people anticipate allowed the recovery of this fish it master back through your client gets water from this facility correct yes or are we your client get less water from this facility if the under the injunction no so if we will we'll look at your client's perspective it doesn't really matter whether there's an enjoy just because we care about the fish too everybody cares about the fish we benefit table trying to get this issue resolved but i'm focusing now on your clients at least commercial interest year other than your clients general remainder for the government is that as far as the courts application the law is concerned there are some fairly standard review reviews here that weren't done properly and the one that i think jumps out the most is that the harms are not tied to the action that's on the table i mean the action that's on the table is this recovery project not the existence of the where itself and the judge conflated all those stand the existing problems that everybody admits are caused by this we are have been for a hundred plus years with with the project that's being reviewed and that cannot be right thank you thank you  may please the court neil of being on behalf of the plaintiffs in this case i want to focus first on the district court's finding of irreparable harm and while the government has touted the idea that this as designed to improve it the court just ultimately looked at the facts of the case looked at the evidence presented to the court and concluded that the evidence evidence did not support the notion that this is an improvement well just a minute i mean what they did why did the district court take into account the present harm the court did when i looked at the district court decision all of a sudden what's happening now had a difference in what the district court was going to do the court considered the difference between the status quo and the proposed well joey didn't into didn't have said the status quos or the present harm now is a part of the harm the government wants to impose it seems to me that what's happened to this point has happened and what it's going to continue to happen what the district court should have focused on is what will the new project do what irreparable harm will the new project do well the district court said that just like the old existing structure the new one is going to block the river is going to make things worse it's going to make things worse because well no no no no we get to you or you began by saying the district court erred concluding that it didn't make things better no i didn't say that what i said how it makes things worse so two things one is the court said that the existing structure erodes every year requiring rocking or the placement of rocks on top of the we're now  going to have a permanent concrete structure in the middle of the river second they're going to destroy the existing sites and all while we can quibble about how good of a side channel that is it's going to be destroyed immediately upon construction of the project and third the court considered side channel did you say anything about this side channel to the district court we did say things about the site so i'm trying to figure out because it doesn't seem to me and looking at what happened in from the district court this side channel argument even came up oh it most definitely came up because that's the entirety of the government's argument there are a lying on with there can contending is a better but my worry about this is that i got the idea that you agree the fish cannot get through the we're as it presently is in two thousand and fourteen and fifteen there's evidence that something thousand and fourteen a few fish passed through this side channel that it that's the best evidence we got correct john and that is and frankly other than that no fish get through that's that's right your honor and so based on what we have now we have two years where a few fish got through and under the new suppose a new idea that the government as now suggested should happen there's all kinds of fish that are going to get through all of the evidence doesn't support that it was just a moment where doesn't it well looking at what the looking at what the the u s army corps of engineers put together where is the evidence that's wrong well ok well first of all we're talking about irreparable harm and i just want to reiterate that i think that the abuse of discretion standard requires the court to defer and conduct illimit i'm going to take i'm going to give abuse i'm going to give the court abuse of discretion standard but i can't find that the fish get through it all now well i got a few fish in two thousand and fourteen in two thousand and fifteen i'm not sure you told the district court that but even given that at this point there's no with nothing helping the fish and now the government has put together something that will help the vision and you don't like it i appreciate you want to take out the we're all together but you're not here for that well we can't do that let me cite the court to excerpts of record twelve twenty six which is the fish and wildlife services biological opinion and that read that there well let me just summarize it it says that we don't know if this new side channel is going to work and you know these defenders of wildlife people are passkey and they make a good point the heck with it the irrigation district is perfectly happy with the water it's getting now we'll spend our money someplace else that would not be you have no you would have no you're right we're going to abandon this project entirely we're going to leave the status quo in effect would any of the acts that you cite today prevent them from doing the endangered species act would be as annual the annual maintenance activity of placing rocks on top of the dam is an agency action that requires yes a consultation and you can challenge that and we can and we can challenge that and that happens every year and just because of that the service of the reclamation have been trying to go through a consultation process since i believe it's one thousand nine hundred three the species was listed in one thousand nine hundred and the problems just him strong both agencies to do nothing and it was only after this lawsuit was filed that the biological opinion and this whole process got to a point where we have a news decision on the proposed action and i take it your position in this case is that there's a third option and that's the one they should choose correct that may be yes your honor and you're probably right they should choose it but are they required to choose it under the under any of these acts they're not required to choose clean water act which is one of our claims that the disc or rolled in our favor on there they are prohibited from approving the proposed project honestly choosing the one that we prefer but from prohibited from approving the proposed  parts under section two thirty point ten a of the clean water act regulations and that requires the agency to first choose the least environmentally damaging alternative or identify it rather and it was identified here because everybody knows the least the least damaging going turn it is the one you like it is but the analysis that the army corps did under the clean water act doesn't actually identify it but putting that aside for a moment but the second point is that the agency is required to prove that that alternative is not practicable and they were unable to do that but isn't there ample evidence in this record that it's not practicable because it would be very expensive and they and would also harm the ability to deliver water which is the primary job of this tale no your honor the government concluded that in fact while it may be more expensive it is still practicable under the appropriate standards and i executive record fourteen thirty two there's a chart in that page and the chart on the page identifies whether or not the proposed action and the proposed or the one of the alternatives multiple pump alternative both improved fish passage but i'm looking for viable in terms of economics yeah maybe we're looking at different parts of the record but i'm looking at e r twenty one forty eight where the agents the army corps finds that the pumping alternatives were cost thirty two oz and that there's a conclusory statement on the at the end of the clean water act analysis but when they actually lay out the test and asked the question whether or not the existing lower yellowstone project will remain  viable and effective the answer is yes or no the water project will remain viable ineffective both the question is whether or not this is a practicable solution and the corps of engineers which may be wrong it did make that determination is on page twenty one forty eight of the record they said it is cost prohibitive and not practicable right but it would cost prohibitive is not the test question is is the impracticable cost prohibitive it's not a test no it's rather  not my opinion your honor that's the agency does the agency's opinion it is that it is that it's not practicable well you know i'm trying to figure out what's wrong with the agency's opinion part of the reason they find it not practicable is they say will cost a heck of a lot of money is your position that money is not relevant consider no absolutely not your honor and that's not what the record says the record take a look at twenty one forty eight is not what they say they said on that page that  let me point the court to what the district court looked at in reviewing this issue maybe you could answer kid which question i did it maybe they were wrong it may be that the district court correctly ruled against them but you see you said what they would have been required to do under the clean water act is make a finding of not practicability and i see that finding in the record made up be supported you may be all kinds of reasons there's something wrong with it but isn't there an explicit finding of not practicability if it says that the proposed action is the most cost effective action proposed alternative is the most cost effective constructable practicable and sustainable with a higher likelihood of success do they need to make assuming those that supported by the record which it may not be do they need to say more than that that's not the question as the utah case out of the tenth circuit says the question is whether or not the multiple pump alternative not the proposed action the multiple pump alternative is practicable or not because that's the least damaging one and so the agency's analysis is not supposed to focus on whether or not the proposed project is practical but the least damaging environmental alternative is it seems to me that what the agent at the core said was that the bypass channel project was the least and mentally harmful practicable option well that that's boring the test your honor the that's blowing the test well you may be blurring the past but it seems to me that what the agency had to do was come up with something which was environmentally the best vironment the least harmful and enviro and and as well practicable and as i read there mister bypass channel was the least environmentally harmful and practicable option right but that's not in light of my single statement that all options were potentially practicable now my book is that doesn't that doesn't cut it that means the district court missed on the clean water act respectfully on earth i could cite the court two thirty three zero five f third at eleven eighty nine which is this utahns case that out of the tenth circuit it reads the test is not whether the proposed project is better than an act claims for a second and i'm looking at the definition of jeopardizing the ranks which is it fifty c a four section four two point zero two and it talks jeopardize means to engage in an action that reasonably would be expected directly or indirectly to reduce appreciably the likelihood of their survival in recovery of a species why does this action that they want to take the smaller we're in effect jeopardize the continued existence of the species your honor that i understand where the course coming from but that is not the issue on appeal the issue on appeal is what the district court found was an inadequate analysis ok i understand your argument on that point and i appreciate it i'd also appreciate you directing your answer to my question if this is important and you say it's not do you agree that the action doesn't jeopardize the continued existence  species in the in the terms that this regulation speaks to well again your honor the district court the idea idea of this i'm a lot of appreciation for the district judge wright is riddick job with all respect i just wanted an answer did reg says jeopardize means that reasonably would be expected to reduce appreciably the likelihood of the survival and recovery of the species so tell me how this proposed action does that it may be that it doesn't have to for you to weigh in and maybe into the district court thought that was in it adequate consultation but at least on the substantive level i want to know the answer to that question because this is a new project this is a new project where instead of an  ding rock and would we're going to have a concrete dams or mentally put into the river court the notion that compared to the status quo with the eroding dam the new dam will make things worse it all you're going to have a concrete dam instead that it will improve it does it not that's what i agree maybe it doesn't maybe it doesn't but i'll accept that for a moment i desk a different question when i'm still you don't want to answer it and i understand why but there's the record support the conclusion that the dam will make things worse for the fish there's uncertainty the whole concept of improvement or making it better i'm not asking about improvement i ask about making things worse well right now you have a side channel that works some of the time under the proposed action you were obliterated that's all but open and you are opening up a broader your outer channel and you're making it you're making a new channel that has characteristics that the service even says and i know they say repeatedly this is going to improve improve improve no i take it again we're arguing past each other here so i just want to end it may not be important but i really do need an answer it may be that one makes what makes things better can i conclude on this record that it will make things worse it will make things worse in my opinion because you are closing a side channel that does work some of the time so for two years you will quit you'll be closing which side channel that occasionally works correct coupled with it will make things worse because whereas we know that the side channel that exists today works some of the time the scientists don't know whether the new site channel will work at all ok so that's that's the jeopardy that you that's the only jeopardy that you can identify in this record yes and just to be clear that our argument was not that this will cause jeopardy but that the analysis was inadequate well but its own analysis is only required when jeopardy under several of the acts when that action will cause jeopardy right know it's a much lower standard to trigger the analysis the analysis is triggered if there's a may affect to the species it's not like with each federal agency shall carry a consultation to make sure it's not likely to jeopardize right so that's the t they apply once they get into the consultation right so if you started out with the notion that if it's assumed we all agreed it wouldn't make anything anything worse then the agency would not be required to engage in consultation would it i would not agree with that your hon worded it wrong if we all agreed in advance that there was no impact on the endangered species from a governmental action consultation would not be required true but even here in the incidental take statement the service says even with this channel you're still going to be taking fifty nine percent of the fish that reach that ok place help me on that one because that was i'm interested in that to your notion is that because there's a take as an instance of this action even assuming for the moment that it doesn't make things worse it nonetheless triggers the entire consultation process it does and and this is the the issue where the service was required the dischord so that the services required to conduct this analysis to whether the species could even withstand the of fifty nine percent going forward and there was no analysis found in the record i guess and to be fair they did they did consult you just think the consultation process was insufficient correct if there's any other questions i'll sit down now no thank you thank you thank you for your argument sure i have five minutes things i just want to be clear about the clean water act specifically and i'll point the court's attention judge here which you're absolutely right to look at twenty one forty eight but also and so i was looking at it in your colleague educated me and said all the oil that the agency found there was that the alternative you've chosen was the most practicable and is that enough so i'm going to  pages go to twenty one fifty and there's a question and it is this twenty one fifty summarizes all of the findings that the core reached in its clean water act analysis and the finding asked specifically and i'm quoting are there any available practicable alternatives having less adverse impact on the aquatic ecosystem the court answered that question no we point out in our opening brief as well as our our reply brief from pages twenty nine to thirty one why that is accurate with the rest of the record in this case and so i want to i want to so that's that's the box to get checked yes it gets checked and so but if that is consistent with everything else to the court found and so as to the least environmentally damaging we point brief just because their preferred alternative the open river allows more fish to pass that does not make it for purposes of a clean water act the least environmentally damaging and the corps specifically point out that every single alternative save for the no action alternative all of them involved excavation all of them vald grading their preferred option the multiple pumps have to construct new roads have to dig into the river itself have to pour concrete there's lots of reasons why the corps might find i think the proposed action and practicable and not practical correct i'm looking other than that but checking the box is there some place in the record where they actually make rates so we talk about this  provide a whole bunch of citations but you're absolutely right your honor ok you give me good either give me your best citations are ok sure started my reply brief and page twenty six and keep reading to get to thirty one under costs record fourteen thirty five talks about the exact cost fifty seven million for the bypass channel one hundred thirty two million for the preferred that the plaintiffs come in with a practical alternative takes into consideration cost technology and the purpose alternative the pumping if you will was not practicable yes but i'm trying to look for them making a conclusion other than checking the boxes or someplace in the record other than that with where they say it's not practical because yes your honor yes and i'm i'm i'm trying to read them to you what you're reading to me are places where they say costs a lot of money costs a lot of money and purposes of the projects i know this isn't those are those are things that would support a finding of non practicability correct i'm or my question no but there's plenty of opportunity throughout this record where they specifically raise all these substantial concerns throughout this record and that's my point your honor when you look at this record when you look at the purpose when you look at the consideration feasibility when you look at the consideration of c all those point to and support the check the box claim and i understand that argument and it's a terrific argument you will prevail on anything i was trying to find out which you and we could have gotten there much quicker is was there any a place of the record where they said that the line that they're looking for according to their reading of tensors case no the answer is no let me just cut a few things they're talking about this i channel plaintiffs and peach eleven of their brief for sixty years the fish that have passed in the existing side channel they themselves say there's been no recruitment so to somehow suggest that allowing this to continue is going to help the species it will not this case we talk about the rocking they they are not challenging the rock that's not an agency action that says you should hear this is a bureau of a poem an injunction the district court concluded that they've established irreparable harm in our brief and we prove that that's erroneous they talk about establishing likelihood of success on the merits of their claims when properly applied the deferential standard overview favors big agencies here and we have that you vacate the preliminary injunction motion order that was granted by the district court thank you we appreciate both sides arguments thank you very much case seventeen thirty five seven twelve and thirty five seven thirteen those are both submitted and court is adjourned for today thank you