good morning mister chief judge gregory and may it please the court my name is derek teenie and i'm here on behalf of the petitioners in these consolidated petitions for review i'd like to reserve five minutes of my time for rebuttal march two thousand twenty one that is the date by which im b p says it will have completed nearly all of the stream crossings that issue in these cases it said in a sworn declaration that it submitted to this court in opposition to the state  motion in the appeal of the biological opinion that's case number twenty one das fifty nine it is highly unlikely that these petitions will be briefed scheduled for argument argument and argued and  decided before march two thousand and twenty one as a result the harm to petitioners the environment's petitioners members is by definition irreparable that is absent a stay there is no effective relief available the trees along the stream banks would be cut down well then yes they say for that same reason that there harm is irreparable because of the economic harm in not being able to right this court told him v p truly hears ago that it should it was all likelihood going to need an individual permit none the less it persisted with these invalid fixes that west virginia and the court have tried and it can't come to this court now and ask this court to consider that in the equitable balance and the case that stands for that proposition is the di biase case in which this court held that a party has to try to mitigate the harms that it's go to this court well how do you respond sure thank you judge when you know the court has raised this jurisdiction all argument and frankly i think it's disingenuous at best because to the th circuit just six weeks ago in an appeal of a district court order the corps told that appellate court the district court didn't have the authority to grant relief in a challenge to the twelve yes just that right but the parties can't agree on jurisdiction or argue a jurisdiction we either have it or we don't correct so what direct review stats you do you base jurisdiction on for you are indeed b p twelve claim certainly there's more than one way to skin this jurisdictional cat your honor the statute is seven hundred and seventeen are deep but the theories that we base our jurisdiction on are number one this isn't as applied challenge of a legislative rule and number two this is the these are co actions all the way down right and of course decision regarding into b p twelve and the endangered species act and of course decision to modify special condition that those are both inherent in the underlying decision that  stuff but what is the et that does this it is the act is seven hundred and seventeen dollars our d n a that's the jurisdictional statute and that gives this court the power to review the verifications the verifications are an agency action in which the corps is applying in w p twelve into p p twelve year it has to be remembered that interview p twelve is a legislative rule right so you're talking about the verifications i guess and i split it up in my mind separately whether you have jurisdiction on your interview b twelve argument overall is one thing and then whether you have  jurisdiction over the verification and reinstatement is a separate matter in my mind so for the end twelve you say you have jurisdiction on what so the jurisdiction is only to review the verifications you know i am not maintaining that this court would have jurisdiction over a facial challenge in w p twelve but what i'm saying is with regard to the verification because that action was and so for that reason the legislative rule in w p twelve is invalid under the leaf theory so that that that's why we think we have jurisdiction as an applied challenge of a legislative rule but another way how do you address the likelihood assess ok force of i will probably try to educate you judge went before that i needed that clarification on on the likelihood of success their special condition and the requirement that p have an individual water quality certification is a condition of the underlying permit there is a condition of an w p twelve that's what this court held and that happened by operation of law just as the clean water  section four a one d is unambiguous that this condition had to be there it's also an interview was that it happened by operation of law that is the statute doesn't say a federal agency shall incorporate a condition it says the condition shall be  condition so therefore the regional of the division part of the engineer has no authority here and that's why it had to be done if at all by reissuing and w p twelve but let's assume that the division engineer had some authority here though the problem with the n d p and poor argument is that they are insisting that west virginia deserve special treatment when it wants the permit modified because it's for its for a one certification but the problem to be changed is that correct the prior regulation even if wrong it allowed write it purported to allow it but only with the consent of the federal permitting authority that is it gave the army corps of the authority to but they did something pursuant to a regulation that said they could do it back in january what was this that went wrong i mean yes i mean but but but but where is it said that changing of the regulation  why not why don't you want to rely on the september th two thousand and twenty change i'm sorry i think i do want to rely on the september ok because it it sounded to me like in your with judge to win that you didn't want to rely on that change because they it was right all a lot before they did need to change it was right all along well i i am relying on it but i'm saying that even if the prior statute or pr regulation controls we still prevail it was still an error for the court for them or in court to do what it did ok ken and can i also go back and try to make sure i understand the jurisdictional situation here if we find that we don't have jurisdiction to review the your claim that they improperly issued reissued into u p twelve do we in the last still possess jurisdiction to review the their vacation and reinstatement yes ok that's what i was talking about at the beginning when i said i see these as as two separate jurisdictional issues and  i got high least i've got all twisted up in your answers well i apologize your honor certainly wasn't my intent to twist any one up in the answers to them let me take another run at the verification is flawed observing what should have happened here if the piece should have been directed under the corps regulations to the individual permit process that should have happened in two thousand and seventeen it certainly should have happened after this court's last decision in fact if i recall you clearly limits that support exclusive original jurisdiction to project specific approvals issued in conjunction with the fur certification or a natural gas facility so there's no dispute that the verifications qualify under the nationwide twelve was an issue and so we had no occasion to say no nor did we suggest that a claim challenging is the reassurance of nationwide while at the brought in the order and in our th circuit for you we made we in reviewing the verification of project specific verification could review the validity of the course factual no effect terminations back in two thousand and seventeen or any other predicate action that might be relied upon or cited in a project specific approval because and that's the verification now there's an important point here that mr cheney brought up that's not entirely accurate he said that in the verifications the corps is relying on nationwide twelve in the issuance of nationwide twelve but let's look at the claim that he brought he's using the verifications to get into this corridor but he is not bringing us a claim against those verifications verifications real live for us a compliance on the three hundred page biological opinion being challenge in the other case he's not alleging that the verifications violate usa and we agree that he could make that out what he's doing and saying thank you for letting me in the door now i'm going to challenge a factual no effect finding that was made in tw on any equitable patients nevertheless the other doctrines that the petitioners attempt to rely on don't apply dow involve this principle that when a court has exclusive jurisdiction to review an agency believes is reported as they already are doing in the northern plains case to the point of syrup lowered i don't think they're just they're just arguing about the acceptance of it they're really arguing they what they the verification there's no dispute that this project meets spades amended regional conditions what they do now how can a state modify a special condition that was already made part of the  in the regulation right or if he projects specific specific verification that's correct but that has no bearing on the validity of the state's amendment of its regional  that there was action taken have to sip timid eleven but your contention as i understand it is what was taken to happen was premised on something that was done locally back in january and but from what i'm hearing from the other side it is you know what happened in terms of whether they have the basis to do that i apologize or i'm not sure i'm tracking and that's my fault but would you mind reformulating question it is simply essentially if we move beyond the jurisdictional aspect of questions o readership nationwide twelve explained that that nationwide permit had no effect on listed species as general under general condition eighteen it does not authorize any projects that might affect a list of species which is a more stringent standard that might occur in the vicinity of where it was species might be located or that occur in critical habitat so sense it doesn't authorize any projects that have an effect on listed species it does not affect  species that's the essence of of the course explanation of has no effect terminate so even on that basis the petitioners are unlikely to see succeed on the merits and again even if even if they were it doesn't follow that not to violate it because if they don't comply with that requirement the project is not authorized under nixon white well and if they happen to take listed species they could be subject to civil and potentially criminal fines under both the clean water act and the endangered species act so and also just as a general matter in many instances the project proponent as is is responsible for determining which laws are implicated by this project the federal government doesn't assume that responsibility it's ai i'm not positive about that but we agree with you that the poor has discretion to make public interest term and the court did make a public interest determination and that's explained in detail and then member memorandum for the record supporting its ultimate decision and i would point out that doesn't seem particularly compelling but in any event the court did follow the proper procedures because the regulations specifically say that the division engineer is the individual authorised to review an excess  in that regulation or in the preamble nationwide while that suggests that this modifies it's sort of the case and down the road suddenly everything changes and the division engineers authority about pirates and you know the war specifically addressed this in the preamble to nationwide while white said regional conditions including states conditions included in the certification they fall under the division engineers responsibility already the operates right except for the fact that you agreed with me that this that it says that the division engineer has to do this before the process well the regulation says i'm sorry if you get the exact wording but i don't know if it's   relating to jurisdiction i think here in the court of struggle with the jurisdictional hook in this case the issuance of the project specific authorization and then the actual merits arguments that are raised here which concern liberty a predicate actions now mister cheney's argument it relies on getting into this court on the verifications itself and then he asked the court to wall off consideration of what the corner but what the district actually could do and actually did these cases in this case in in reviewing these these predicate authorizations with respect to the issuance of nationwide twell that was an action that occurred in two thousand and seventeen b it was and according to mister cheney's theory that action itself and of itself at effects on was that species that were reasonably certain to occur as of that moment and at that moment he has all of being greedy and so everything he needs to raise in federal district court challenge to that action be it is essential to the claim that he is that the court ignore a project specific consultation that occurs here right that and that that's the best the irony of this because the the jurisdictional hook what gets him into the sc there's a there's an implied so there's a suggestion mister ting his argument that the district here has some discretion to disregard what the division has indicated are the terms of the permit the district has no such discretion mister cheney elsewhere notes that but the district is bound by the chain of command and so they certainly have no discretion to say we're going to rely on a separate set of conditions not the ones that the division has that are political and with respect to nation whitehall certainly the district has no already to go back and  conduct problematic consultation and to mister mcconnell's point here when we're focusing on the program at a consultation argument that the district is not relying on that no effective termination it's relying on the project specific consultation and that's a stands the the review is limited to the substance of challenges it is not does not cover a procedural challenges and as we've discussed our papers both of these arguments would qualify as procedural in the  biological opinion relating to the pesticide registrations they are not in here and the controversy over the actual registration decisions themselves would not here not on jersey and the court there makes and makes a very important point that's directly  decision itself and here unlike perhaps and in that case the district discretion is is sharply limited and that's again that's a promise on which mister keene is claimed rests about the l r b modification consultation argument does not arise in the face of a no effect from a nation what petitioners asked this court to do what they must ask the score to do is find that that action that conclusion was arbitrary and capricious not not the not the verification here as a st step as a necessary st and indeed as the only step they must have you look at the court record before the poor two thousand and seventeen and find that that action was arbitrary capricious and that's the problem that is they are asking the court not to assume the validity of those actions and look at the course decision to rely on them but instead to assess the validity in the st instance and that is the jurisdictional problem and that's what the cases we cite  that the excess cost in resources and all of that is of respondents and making because they could have gotten an individual permit years ago as this court suggested in tw clearly it was questioned back in sierra club and during oral argument as opposing counsel indicated at which point at least in response to some a judge wins questions respondents indicated that if they'd started out with an individual permit process at the beginning it would likely be done by now so now the question is how is not doing the individual private permit process specifically created general permits i see them over my time of a vacuum or the congress specifically created the category of general permits to use the regulatory burden and by the time soon after the court's decision it became a nt that the condition would be modified now as the court knows we don't with we had to deal with other issues relating to do us any compliance but you could if you could do all that you say that you're doing now couple that they will challenge anything that we do and in this context we need to been in a temporary stabilized condition for a year incurring a cost of twenty million dollars a month we have the authorizations we're not going to wait to get sued and wait for those lawsuits to be resolved it is directly in aligned with the positions that you're taking heat or incur costs of twenty million dollars a month to maintain temper erosion control devices that's a fact and and  haven't been going out operating in contravention of this court's orders everything we have done has been in accordance with worse in a in accordance with and to be clear i'm not i didn't mean to imply that you were doing anything in contravention contravention acknowledges that licensing agencies like the corps can allow that and in circumstances where there has been an intervening judicial decision or a change in state law and both of those conditions are satisfied here this court in its decision issued a decision about what the prior certification meant that was at odds with what west virginia thought its conditions meant and then the change in law was the the need for the individual certification was largely became to look at it with the state's promise of its  had gone to the district court there in the huntington division right next to the courts district office and appeared in front of judge chambers with a complaint challenging and twelve and one hand and a standing to that ration prefer him to the n c p in the other we would have been met by a motion to dismiss for lack of jurisdiction and for rightness and told to come here this is a ploy on the part of the court to try and further delay resolution of this action and there is a principle that appellate courts apply and it was recognized by this court in the palumbo vs waste technologies case that when there is any ambiguity or whether it's unclear whether appellate jurisdiction or district court jurisdiction should apply it should be resolved in favor of jurisdiction and that's because otherwise you end up with duplicative litigation and considering that congress intends with seven hundred and seventeen dollars or d was to streamline review of natural gas permitting decisions it's perfectly appropriate for  court to consider those actions the other thing on jurisdiction i'd point out is that the statute itself seven hundred and seventeen dollars or d doesn't just apply to the issuance or denial of permits for these facilities it also applies to agency actions that quote distant such permits and that would include of course the course modification decision so i would suggest that this court under the language of seven hundred and seventeen dollars or d would have jurisdiction  reply brief if we didn't consider that argument to what is your best argument on their fixation and reinstatement challenge the to argument there is that nonetheless even notwithstanding that rule change that the course regulations still prohibit it from making it in w p less stringent the division engineer simply lacks that sort of discretion and so it's that one way ratchet argument right that simply couldn't do this but if i may defend myself or if it you know the say though that you go back to the argument then that the the the division man engineer only has authority prior to the issuance or reassurance that's an impermissible assertion of the new argument it is directly responsive to the position the core that the core and d p took that because west virginia had done this the court had no discretion they said that in their briefs and they relied on section and thirty point four c two but if you look at the court documents the record for decision the division engineer never relied on say you were raised in a new are in a your argument goes you want raising a new argument you were merely responding to the arguments raised by respondents that's absolutely correct right we didn't think three hundred and thirty point four c was on the table because the division engineer never cited it and so we proceeded with what we thought was our best argument at that time when they raised that and they insisted because in the pit because west virginia had done this they had little to no discretion well then it became at issue in this case i'd also like to address the doubt challenge involved the actions of two different agencies right in that case that involved a decision by e p a and a decision by one of the wildlife services here it's the core all the way down so it's much different than it was jurisdiction so i would suggest that the result in doubt is distinguishable looking once more i see that i'm nearly out of town at the time my final point on whether a state can modify you don't need to take petitioners w for it you don't even have to take the ph word for it this kick this question was decided by the western district of washington in the airports unities case and in that case the court the court there health th