of the parties have circulated and we've looked at significant portions of the record so if you want to get right in your legal argument and let me let me just toss out a question so you work it in your argument if you want it you want as i understand  secretary of the interior until one thousand nine hundred nine the license in this case was issued in two thousand and four five years after that but the actual record itself the program which i assume occurred is closed when the program matic agreement is circulated was two years before ninety seven and that is the national historic preservation act consultation process that's for exposition that that closed upon finalizing the program matic agreement so there's a dispute between your clients and the government over what commission's obligations in regards to consultation closed when that license was issued in two thousand and four i think it got even though it is addressed in a briefing i think is important to note that the spirituality of the files is can be reduced to the written word and it's very understand from the for its ruling they seem to feel that they were presented with an all or nothing kind of argument by the tribe that is they wanted the falls restored to total natural flow is that correct that you can't generate enough minutes with something less than stopping any diversion so you just clarify in other words what is the parameter of to put the tribes religious beliefs down on paper and to categorize them and what we did in our briefing and what they tried attempted to do and it's really demonstrated by their partnership with the snow kwame foss preservation project and the church organization was to try to gives their gifts and cross cultural understanding for what their beliefs are because being in or twined with the natural environment is foreign to most people in in today's culture now the mists are certainly part of that in the mists really  a structure were tried in this case of tribes religious beliefs have to be respected there has to be a concern about substantial burden but then if there is a step substantial burden then i lose more to the analysis and that is least restrictive means being one of the one of the second to your inquiries and so what i'm trying to find out belief is that it's really just it's religion depends upon natural flows that the falls now it is it does not have the obligation to compromise it's religious i'm not suggesting you to compromise i'm just asking what your position gets and our position is otherwise i just wanted to know what it was you know i understand i just think it's important so that it was they do not compromise their religious beliefs now getting right into their arguments and referee which are really the heart of this case especially from the tribes perspective  think the legal error that the commission committed in this case is demonstrated by its route reliance soley on winning and its and wings requirement that incidental burdens on religion cannot constitute substantial burdens and i think the court  is very that cases are very clear that incidental burdens can be just as substantial as direct burdens and that's in the plain language of her threat self it comes the first place that happens in short where the courts the supreme court says incidental burdens can be just as significant as substantial burdens and more recently this court in war soldier also recognize the fact that incidental burdens can be just as substantial as direct burdens ms rogers  substantial burden not if not an incidental for well if i understand your question correctly i think what ling did i think lean correctly states the law in regards to first amendment legal analysis i think it incorrectly states that on regards to risk for us with really was sought to overturn that the whole basis of what the decisions that you focused on the character of the governmental and action that's burdening burgeoning religion and we need is quite clear that that's what it did in neck case and the majority opinion in smith recognizes that fact so i don't think the incidental burden language survives ri now leading also establish this coersion test i think in certain circumstances if there is governmental coersion coercing an individual to violate their religious beliefs i do think that can constitute a substantial burden and the best example of that governmental coersion or pressure really comes in the form of the prison cases where you have grooming policies and there because the inmate is confined it's very easy to show that there's governmental pressure but it's an example but it's certainly not the whole universe of what constitutes a substantial burden and i think that's why this court interpreted those terms quite broadly in the san jose question christian college case where they interpreted substantial burden to be a significant restriction or onus on one's ability to practice their religion now i think it's those broad terms that the that refers should have applied in this case because substantial burden is plain on its face but they just didn't do that your hon r just touching also on the the national strike preservation act argument and the commission contends that direct consultations simply could not have occurred in this case even as to even though the t federally recognized government in their argument is based upon the parquet rules of the commission and i think it's should be noted that in the record early on in this case there was some movement to get the commission to work with the washington department of ecology and to come up with an estate explosion essentially flow regime that tourists would enjoy and in those discussion in the record it does say the commission recognized that the x party rules constrained their conduct but that they would be able to work in at alternative dispute resolution process with ecology and other interested parties on flows so i imagine the same type of thing could have happened in consultation with the tribes i assume that the flow of the falls is to some degree dictated by nature i mean there are going to be instances where the there's been a lot of rain or a lot of snow melt in the falls it's going to be quite heavy in other instances where it's just going to be down to you know minimal i would like to thank you good morning and it please the court my name is mark schneider and i represent puget sound energy in this matter in response to the court's questions of counsel and the issues raised in the brief i'm going to focus on three issues on the religious freedom restoration act number one the rather in footnote forty one in footnote forty two and in paragraph thirty six what her did was lay out what that test is it cites in footnote forty one what the correct legal standard is in footnote forty two it correctly states that rift was designed to reinstate the compelling interest test of sherbet and of wisconsin versus yoder and then a paragraph thirty six they lay out the inquiry that they will be undertaking and the increase they asked in this cases that's the test that laid out in the guam decision in two thousand and two the test that this court laid out in the war soldier decision in two thousand and five so that was the question that first asked it asked the right question it applied the right legal standard it then taking the right legal standard then made findings of fact that there was no substantial burden to the tribes religious exercise and it made findings of fact that were based on substantial evidence found three things number one third found that the issuance of the license order would not require the tribe to violate its religious beliefs that factual findings set forth in paragraph thirty six of the order f also that the tribe would be able to maintain its access to the files and engage in its religious practices at the falls that's also in paragraph thirty six and internationally may i ask you a question yes your honor judge  fisher just asked what i think was probably the most pertinent question one could ask on this side of the bench and that is whether the the tribe believed and still believes as part of their religious was somehow restricted and so forth and they said to know that in order for them to exercise their religion this has to be a natural flows back to the natural whims of mother that is the case and that's their religion and i don't think in a position to redefine their religion for them if that is their religion that cutting off the flow of the falls would somehow not substantially impact a religion that would be like telling a catholic well we've decided that it isn't important for you to go to mass on tuesday and wednesday because you can go on sunday i mean i don't understand how they came to this conclusion i believe how first came to the conclusion was based upon the evidence in the record and let me cite to two portions of the record that constitute more than substantial evidence on the question  date the view is largely unchanged from a century before and the majesty of the the falls roar of its current the mist rising from the pool and the mossy cliffs which rise on three sides still convey the traditional setting of the site which is completely a continuous role in the culture of the snoqualmie people so that was one piece of substantial evidence here's another on page seventy five quote this is from the tribes application in their description of the falls quote even so the falls continue to maintain a six sufficient average volume of flow so that it is recognisably the same site and continues to play an important role in traditional life and there's more conducted interviews he conducted studies he looked at the oral history and he concluded quote presently the force provides a place for the contemporary snoqualmie together to pray to meditate to worship renew their contact with their ancestors in their spiritual powers that's one page six sixty six just a few pages later he concludes by saying quote this study demonstrates that despite some one point five million tourists that visit the policy each year the snoqualmie indians still respect the falls as a sacred site and continue to use it for their religious experience and so the substantial evidence the first relied upon was evidence supplied by the tri that self because of that finally because of the finding that the tribe would not be compelled to violate their belief in they could still maintain their religious practices for it properly found based upon substantial evidence that there was no substantial burden let me turn  that they wanted the project to be the commission or that they were saying that's correct but first found based upon the substantial evidence is there would not be a substantial burden let me turn to that question though it let's let's assume that this panel find contrary to the factual finding of first in paragraph thirty six and thirty nine of its order let's suppose this panel finds that in our view country to the evidence there was a substantial burden the order is still proper because it vance's compelling governmental interest and it does so in the least restrictive means there's three compelling interest identified in the order by for number one recognise the critical need for a reliable energy source to meet the region's growing energy needs that's finding the fact in sixty four and sixty eight number two first recognise the importance of avoiding the use of limited fossil fuels and instead relying upon the clean renewable power of the falls that's factual finding thirty seven and then finally and this is it was significant at the time of the two thousand and four order but given the headlines over the last week it really is even more significant ferk found that the use of power from still kwame falls w preferable to the use from other sources which would lead to increased greenhouse gases that's an factual finding thirty seven and those findings about compelling governmental interest are supported in the record for example in the northwest planning  power planning conference this is a r one thirty pages one thirty two nine forty six they submitted a report demonstrating that there was a compelling need for additional power sources and that the falls would provide a means for meeting those needs for additional power and then very significantly first found itself in this final environmental impact statement this is the administrative record tensed administrative record number ten seventy four page of the experts for record one six nine eight it did a study and it compared with the environmental impact would be from creating power from the snow call me falls versus other sources and well is it isn't this what the snow quality nation is concerned about that all  of these people are going to ramp this up and pretty soon they're going to get you know what looks like nothing coming through there and that's what the license order protection that goes to the least restrictive means which i will turn to in just a moment you honor what the first found was it said if one were to take the power generated by the still quality falls the alternative would be to go to other sources of energy which create three in house grass the gases which lead to the greenhouse effect that is certainly a very compelling governmental interest it also looks to what the alternatives would be to create new sources of hydro power and it determined that the environmental impacts would be far more significant if a new hydro power plant was constructed so first found that there were compelling interest to even if there had been a substantial burden and we believe the evidence established there has not been first found that there were compelling interest let me turn to the last portion of the test and that's the least sound energy is not allowed unfettered use of the falls it is very limited in the amount of water it is allowed to use what first did this it took the existing flows in one thousand nine hundred one and increased it by four in five times four hundred to five hundred percent so there's far less power available for the use of hydro power but in addition first condition the issuance of the license by precluding any development of the fault any developments in the area on the south side of the river downstream of the falls it precluded the extension of the snow kwame preston trail and significantly it said that any construction activities must be inaudible it must be invisible in areas where the tribes were conducting their right or we think we think that they got it right when they issued that license order in two thousand and four they made the proper determinations under referee they follow the necessary practices they that they were making the findings i know you're out of that with with respect i would i would disagree with that characterization if one looks at the paragraph forty one actually footnote forty one footnote forty two in paragraph thirty six they are asking those questions referee they did not use and so that was for their substantial burden test and it's our view that based upon the substantial evidence there was no substantial burden as to the remainder of the two did not use the word compelling interest or l least restrictive means but the factual findings they made demonstrated that it was a compelling interest and the least restrictive means i see here fifteen seconds left i'd like to reserve that if i could for rebuttal thank you power case as far as the first was concerned and its first responsibility whether the ministry and the federal power act which under two of its major portions required to balance it had to find out that the project as license was best adapted to a comprehensive plan for developing a jurisdictional waterway for beneficial public uses its understanding of the act and under forty it has to balance and give equal consideration between power development values and on power development values and this is what the commission was because we find that there's no substantial burden they quoted but then they it's not clear whether what they were applying and that's that's for me is as i've gone through both of their orders and having a little trouble sorting out what standard they were applying and if imposes somewhat greater constraints than the federal power act balancing process might and what do we do with that well that's that's correct but let me see if i can  sure our job here was to try to in fact walk a very narrow line balance these very divergent interests you have fugit sound energy saying we went way too far in trying to accommodate the religious needs of the tribe and we have the tribe on the other part of the seal saying that we want to the point of actually obliterating the religion we are in the middle trying to say we have to balance all of these and are compelled to balance all of these these interests without going against refer religious issues to the commission in their request for rehearing they went to great lengths to talk about willing and then this thing wished laying on the first amendment saying that the way you violated referee and these are the elements of are for and then it went on to the next argument so there was really no in depth discussion about reform so in the orders the commission first dealt with the first amendment issues and in the context try i'm sorry to be hearing workers again the try focusing so much on laying that was part of the focus of the commission but not necessarily improperly conflating those two standards so we're looking at what the case law is in this circuit in terms of the compulsion aspects of substantial burden when the commission said that this was an incidental impact on the quality of the religious experience of the tribe this is in stark contrast substantial burden means something that is a significant in position or compulsion to somebody to do something they're not allowed to do or or preventing them from doing something that they must do and so here the commission found that there wasn't a substantial burden so having found that they didn't then go to the next steps but as counsel for puget said that even if you were to go there there is enough evidence in the record and  spine tings to say that in fact compelling government interest word danced by the issue of the license number one and number two that it was done in the least restrictive way possible and this is a very critical point you  substantial burden and almost every single one of these where it's been held against the government it's because there was some narrow remedy that was available if you look at the paoli cases you have the ability of having a limited permit f is going to violate their religion isn't it that that is their argument but i think we're also missing a very important part here which is these orders the new license substantially enhance flows compared to what they were under the last license and compare to anything with the worst since eight hundred ninety seven so you'd like back to this one nine hundred ninety one i guess declaration by the by the i guess they weren't they were a tribe and were a nation at that point continuing use of the falls for the religious purposes they were not saying that they are being prevented from practicing their religion they are not saying that they are not being granted access they are saying that under the past licensing area the more restrictive one even under that scenario they were practicing their religion does it seem to me like the ninety one declaration by them is some kind of it mission against interest it seems to me like they were at that point simply trying to preserve what they had and so they said yes you know don't denigrate it further because this is what we but i think there's some truth to that because in the initial application fugit has applied to increase the power there by getting a larger water right which would have in fact decreased flows from where they were and right past license and the evolution of what happened in this case that that was discarded so your in your view you gave three quarters of all of what they should be happy about that well the power issues and the one power issues this is one of the non power issues we had the first order which adopted the water quality certificate flow regime and on rehearing we heard the tried and said look this is something that's very very important to them we want to try to give them as much as possible without violating understand that argument are are you saying then that where the two acts of congress may call by the federal trial or an act and the religious freedoms restoration act that her arrived at a solution which is the least restrictive means available given the alternative the tribe requested which is the complete decommissioning of the project and and that in essence what the government is arguing to us is that rift for a doesn't trump the federal power act that it would not require in the extreme case the commission to simply tell puget sound energy you have to shut that project down and restore the site to its natural flow is that what different flow regimes and flow regime see which is ultimately where the final flow regime came from was one that the evidence showed satisfy the greatest constellation of interest to the extent extent possible because the only other alternative that i heard from the tribes lawyer was you simply should have denied renewal of this license and decommission the project that's correct and we refer to a a delicate balance that was struck here there was evidence in the record that said if you look at all of the interests that were being weighed here that two completely satisfy any one of them could in fact destroy the interest of some other one so the idea of the federal power ac to look at all sides and try to use try to strike a balance which satisfies to the greatest to be possible supported by substantial evidence that does that in this case we believe that these orders do number one and number two even having done that under the a when you look at that one there really was not a substantial burden on their exercise of religion we are not preventing them from doing anything we're not compelling them to do anything and you go back its previous council suggested to this ninety ninety one declaration is that right ok thank you the issue this case is not related to the application of the clean water act has no authority under the clean water act and first has not amended ecology section four a one water quality certification the clean water act does place responsibility would not be a water quality concern because what you'd be doing is returning nature to itself now that gets to the question as to whether huge is arguments as to that then whether hydro power production is a beneficial use under the washington's water quality look in the application of the anti degradation policy in both our water resources laws and the water quality laws it is recognized as a benefit for use of of water for water resource allocation purposes but not of beneficial use in it precise terms as hydro power production as a benefit of beneficial uses protected for water quality purposes yes so you're basically just looking at water quality or not looking at the religious aspect of this one way or the other and not at all and your own when they try and just a couple points i want to touch on real quickly about the tribes position being characterized in this case as all or nothing i think it's important to point out that this case is really a procedural case and what we're asking at this time is that the co substantial impact on your client's religious beliefs their nine hundred ninety one declarations with respect to and you heard them and how do you reconcile that or what is your view of that i mean i think maybe judge harman suggested or asked whether there was a change of view or yeah there was never a change of views that the tribe is always held the position that it needs natural flows over the falls in order to restore that sacred connection now that information that they're stating is continually used i think it's important to look at each of those citations individual because sat at least one of the documents in some of the documents didn't even discuss the kwame fars and that's because of the cultural probably bishan and disclosing this secret and secret information and that is something that's never addressed throughout this entire hearing and which is extremely important because there's cultural profit bishops against disclosing this kind of information and there needs to be a way to discuss that in