good morning your honor i may have to please the court i'd like to reserve two minutes for about oh i think i had ten altogether we represent the fishing communities associations and businesses whose interests were immediately it adversely affected by the lease of an area offshore in new york for offshore wind development twice the size of the district of columbia at least was made by the apple the secretary to the appellant happ intervener ecuador on december th two thousand and sixteen we filed suit to enjoin the lease option for this wind farm underneath the outer continental shelf lands act the final sale notice had and on that basis disposed of are in the book claims on rightness and are absolute claims on failure to provide sixty day notice of the district court erred on both counts it's simply not the case under counts four dollars and five  up leasing as the signal element of users specifically applies to any activity and certainly leases any activity the court found we had standing but are the claim by for failure to provide sixty dollars to sixty dollars days notice and the fundamental issue here is that bowen pushed the lease sale through doing it during a presidential transition there was only forty five dollars days between the final sale notice and the lease option generally yes claims under the top law are supposed to be provided sixty days in advance but there's an expressly set forth in the problem the problem for you is that the rightness disposition on the st part of the case really is damaging to you in the arden that you're making now nothing has been done to effect what you're complaining about w choose the possibility of wind farms that has not been granted this is a right the st refusal as has been said there isn't and that it seems to me the record is absolutely clear on that they have not been granted permission to do what it is that you complained about they have not yet another way to put the general question is why isn't this case totally controlled by peters obligations well the court under rightness principles and also can consider hardship it needs to look at the actual facts that boeing was confronting in this instance costs for site assessment and construction and operations plans that's all the costs that will be incurred before boeing makes any decision whatsoever under underneath beyond simply a decision on the side assessment plan that we've already seen with an e s a and what we're saying is that it defies reality to think that after you have gone and suspend all that money made all those years of investments that poem is going to turn around and say at that point wow we really put this lease in the wrong place all along had to fight is reality and that's and that's the tension here i can understand that oh i'm not want to have what happened to cape wind happen again where they ended up in years of litigation they restructure their processes their restructured their lease forms but the court can't and shouldn't look at this and not acknowledge reality and the other point that the your your honor you would like to buy one powerball ticket and you're the only person in the country that's going to buy that powerball ticket you're not going to do it because used to get than forty three million dollars to buy it you're so not going to buy it because there there are hundreds of oil and gas leases that are issued at the same time that the costs up front are fundamentally different it's just a fundamentally different set of a leasing criteria and leasing standards you're you're not spending hundreds of you know tens hundreds of millions of dollars upfront and those practical realities have to find have to find a way into the courts analysis to some point because because what we're saying fundamentally is the most important issue to the fishing stakeholders in the fishing community the most important issue is the location of the lease and the location of the lease is not going to be considered in any sort of detailed way until after it until the construction operations planning and what we're saying is that if you do that you're never going to get a fair shake you're never going to get fair consideration of the location and this location was decided back in two thousand and eleven when why because you think the government agency wouldn't have the guts to back away when at the next stage they were convinced that this cannot be justified i mean that's the heart of your argument now senator we can't trust the government is there any case that says that we can't trust the government no there's no case that says there's no case that says that exactly but you're also happen to have a situation where again the leasing process has been but one went and it looks to me like they went and they read peterson and said let's set this up this way so that we can fall under peterson that's great but what they've done is they've turned the are conducted at the at the least face for not non survivors occupancy leases where the presumption is that there's generally going to be any i guess in the same things should should hold here is that you can't just say that everything is an exception to the general rule that with leases there should be an a fulsome consideration of the location up front are your clients currently still fishing their fishing areas that are still fishing and his fishing area hasn't been disrupted yet hasn't been disrupted yet  saying is that these these matters need to be dealt with upfront yeah it's just that fundamentally different right  your position seems to be that as a practical matter at some point before assuming that so i mean there isn't a profile of the construction and operation planned at some point before that the agency will have made  argument about the side assessment plants but we're saying it is not about science and i'm talking about i thought your argument was come on we all know the forward momentum isn't going to be want is a fair full and fair environmental consideration of fishing there we never said we wanted to ban what we said was we want to get now cease to now cease to be conducted we think if the analyses are conducted in a fair way that boeing will look some place else to lease so your but your rights just to clarify then so your position is that if a full environmental assessment is done it's not that they could adjust something about the construction to sort of balance you know where they put the wind turbines but that in fact there's no there's no way to adjust the construction that it won't and i'm to i'm asking a predicate question and that is because this makes for me at least it's relevant and that is if the question here is look once they they've got to do this comprehensive study and once they do they'll be able to tailor this project in a way that will balance the power interests in our nation that's one approach the other one is they need to do the comprehensive study because once they do it's going to re no balancing in the construction and operation process is going to work having a when phil mill farm here at all is going to irrevocably and quite seriously damage our fishing which of those is that it could it could be either it could be there it could be that some there that it could could that you could set it up someplace else partially or more fully but that was never and that was never analyze in any if you're saying you understand you can lose it but you feel like it is so important that it must be done and if it's done honestly we'll see what happens that's what your argument is that's what our argument is ok and then well i i don't see it i can i'm not making honesty allegation or no i doubt that that was perhaps it was just that i just want to make the older read don't over it that word you're saying you're entitled to an honest process we're going title to that's not where the dice are loaded against us that's exactly i understand ok ok good morning your honest man please the court and john sponsor for that your approach and energy management your honor we believe the district court's judgment should be affirmed because the kind of crimes are not right because when it's failed to comply with the sixty day notice requirement with now i think the court understands our argument it is based on peterson and the argument is that peterson controls and peterson controls because the beast in this case does both likelihood that are getting what the law in their view requires that is a hair assessment of the project full and fair assessment is dramatically reduced when this much money is being put into it at the front end as judge and that is a perfectly plausible argument this is millions and millions of dollars i'm sure the three of us preparing this case separately or scratched our heads and saying right of st refusal to beginning date the terms of the lease were known but they say it's not they're saying it's transparently unfair because you are allowing someone who is investing millions and millions of dollars to get a foot in the door in th right st they claim st of right of st refusal is a joke in their view because the likelihood of their prevailing now having invested so much is really great well your honor as i think the court mentioned there there is no law that you know that says that you pay more for the least and therefore you need to do it any i ask if the lease meets the peterson factors and what i was trying to say is the there is a presumption of regularity of course with  is the ability to examine different alternatives on this leasehold and committee gate impacts and one of the things boehm determined when they they identified this area and decided to go all right with the entire area and not cutting off particular it's from the beginning was that this would not necessarily cut off all access to all fishing right there are ways to mitigate impacts and do different things and boem boem said if we need to study those st in an environmental impact statement  haven't seriously considered just doing it so where else completely so i get that you are saying that we can do our environmental study and we can we can with the rejiggering things and adjust things and ban it a little bit here and make the authority all of its authority and iraq's lol it's already generally to say no to the project if it will have an acceptable in our environmental consequences and that's the difference between us ok that's important but now the question to you is what if the various those go forward and then a court upon reviewing the environmental impact statement says you committed very serious error and not fair and not considering doing it somewhere else completely and all this money has gone into it maybe contraction and even gone forward at that point the very separate question of whether just when the bureau could decide what was the bureau going to say i want to court so vacated and all that money and effort is going in is there is a government going to agree that's perfectly legitimate thing for the court to do because we had no commitment and this company can't depend on there being a commitment this is a right to space and so the government the company came screaming in don't vacate don't like it look how much has already invested here and how do we know that's not what's going to happen as a practical matter under these types of leases the way this is a right that is my and their argument is you can't do it here at all we're past that decisions no longer on the table so i what i want to hear for you is not that you're not going to make the decision until you think you've done a sufficient environmental impact study what i want to know is what the west in both those cases we had defective environmental impact statements yet the construction was was proceeding the lesson i take from those two cases is that this court ought to be in there being injunction when every anybody makes a serious challenge to environmental impacts we ought to be enjoying the construction and we do that because the government agencies are going to scream bloody murder right they're going to say oh no no don't don't enjoy new construction  lesson i've taken away from it we ought to be very serious about enjoying the destruction of these projects when someone makes a serious claim about the adequacy of the environmental impact that's the point to prevent any future the kinds of things we kind of impacts on you know there are return on on their fishing life and their ability to face will there be you know what kind of mitigation can there until all of that is sorted out through a robust by mental analysis which won still have to do it's very difficult to talk about you know should there be an injunction or not and of course i'm not going to agree on behalf of the government all project i was asking you for that money that's not was not the well and that you're already at the construct reviewing the construction of the operations plan is that correct is my understanding is there is a plan that was submitted mr super may have reported that they've already submitted  government because the government agree with the government agree because the difficulty here is this you know litigation or sorry if i'm correct has to go through a district court in this up to this court to and so that means there's a lot of time a lot of construction that can happen again before they're ever going to get that fundamental question that i take to be the heart of their objection is that it should be in this area at all it's going to get go one had not put the area out released without doing the threshold you know review determined and that's what i think that's the point i was making earlier in the record that there's potential fisheries record so those risks are out there is a potential risk they're out there well look at it all and determined at the leasing stage if they didn't preclude putting putting out a lease in this area because there were potential ways to mitigate those impacts because in know setting up a weather buoy and some limited equipment and there was never any challenge as to the being so short the impacts of putting out that equipment the new site assessment f you know have happened those those were done but those weren't those that once and it ended with the final point the lease and the regulations treat site assessment the same why it's construction operations that you need the approval and if at the point a site assessment plan is presented  effectively be you can't trust the government because that's what they're saying there's no question that that boom has the full authority under the lease to reject any activity in the least interest in terms of constructing a wind farm and that that poem will conduct a full and complete analysis at the construction and operation plant stage and frankly that will be zero on ship because all of the stakeholders including the appellant's will have a i think i'd like to address this notion that ecuador obtaining approval to actually build a wind farm into lease area is somehow a foregone conclusion because ecuador has a construction operation landing in your view fully complies with that you very regulatory barton's we we did because of the risk actually of own accord or a spent years developing a construction operation planned for submission  and when that plan is subject to renew boehm other agencies public really all stakeholders including the appellant's here can assess the impacts of that construction plan and bone can decide based on the oxley factors and analysis whether it's going to let that plan go forward or not yes ecuador has confidence in the plan of course it invested money in it but that is not to say that it does not recognize the substantial risks that this project may not go forward and i think it's important to keep in mind that at all of the commitments financial commitments that have been made toward this project do not include boehm i mean bone has retained under the lease and under its regulations authority to review the construction operation plan assess it under nepa assess it under the oxalis factors and decide whether that plan should be allowed to go forward so these commitments are commercial commitments you know made by the state of new york but they all recognize that it's up to boehm to decide whether this project to go forward on those commitments have not been made by bone i think the place to look for the commitments made by  question i judge malott that appellants are still fishing in a lease area with the only immediate effect they alleged due to the lease auction was being crick looted from entering the lease area and of course that hasn't happened because at this point no construction operational plan approved has no right to exclude fisheries from entering the lease area they just don't so there has been no immediate effect massachusetts v andrus case looked at oxley considerations at a point of considering offshore asked growing under under a similar provision so i thought i believe you can the time the timing there we made the decision to file within sixty days because of the because at the point of the lease sale that's when rights started to accrue  bid was was and was accepted back in two thousand and eleven has looked within the footprint of the lease the nd point is expectations and reality matter the court decided peterson but the court also if you're an appellate court and you have the right to look at peterson and considered and acts and circumstances of these cases and in terms of impacts expectations expectations and reality matter new york state has contracted to buy power out of this area already so it's just it's there's a hardship it's not a fair consideration ok anything else no thank you ok thank you katie submitted