to terminate funding to the center it's found in our further excerpts of record at five in the program solicitation which e p a published on the internet to the public the e p a represented that congress had passed well legislation think they just made a mistake your honor i don't believe they just made a mistake i believe that they were trying to implement the report language because it was it exists and i do believe that the record show that what they're arguing now to this court is a post hoc rationalization they were not merely exercising their discretion they were implementing report language that mistake whether that's in fact what it was cannot be countenanced by this court and given the fact of you still take a look at the consistency argument or with their you know the court could take two courses you could stop there because under the administrative procedure act they have that should be set aside however with respect to the ultimately relief it would be important that petitioners in the past and i were placed in the same position that existed prior to the report language which in fact would only happen if this court were to issue an order that that is similar to the state order that this court issued in march continuing the funding for the center until such time the bonneville can make a decision that may or may not be supportable under the consistency provision however because we are in this place now where we have several different entities trying to undertake with the fish past the center has historically done for twenty three years you may reach the consistency of provision because it will inform on avails next decision as to what exactly that means we've really gotten off track of the northwest power act here where bonneville claims that it has unlimited virtually unlimited discretion to decide what it will and will not fund that is not with the fun of or excuse me that is not with the plain language of the northwest power act congress has limited bonneville discretion with respect to issue in the seattle master builders case where the court held that the council is an interstate compact which was created by state law and adopted by congress in the northwest power act this court has held that the council is constitutional and that where that the federal government can be subject to state law where there is a clear congressional mandate and specific legislation which makes the authorization of state crow control can excuse me clear and unambiguous the by the commission of the atoll laboratory which was a practical difference as a as a practical matter you're out of there there are many issues there are many harms that are caused by the differences first and foremost i can't emphasize is to be making these decisions and so to allow the council to then decide well we're not going to fund the center specifically we're going to do something else would actually be a de facto amendment of the program without going through the amendment process that is required by the north  two thousand program and the two thousand and three amendments expressly call for the continued operation of the fish patent center i think this is probably it result of the history of the fish facet center which has been funded for the requires an oversight board to ensure that the council is excuse me the center is conducting objective science so we have unique facts here that the program expressly calls not for the question of fish data but for the has expressed a call for and with respect to your honor's question with three regarding harm in particular the record shows that there will be harm to the real time collection of this and what that means is over the years starting back in the early eighty's there was something called the water fight shit the most important litigation measure for fish to restore this these fish runs is to get them out to the ocean in the spring for the migration and they can only do that with the fish and water has to be spilled over the dams it's now called flow the fisheries managers are tasked with having the real time data analysis to be able to make requests to the manager the managers of the dance to say look we need the water now at such the statute eight thirty nine b h eleven which has very different language that statutory language says that all federal managers are regulars or operators of dams so take the program into account by those of those record cites i just gave you clearly reflect that this was not just a little difference of opinion between b p and the council program they have done all sorts of things that that have in effect totally changed the operation have a method the fish and wildlife program you're saying in effect that the program has the force of law rather than just what i'm saying is this is as co counsel argued that the the northwest power act requires that question if the v a set up a notice and comment rule making could they do that to amend the program asking question interesting question and i'm not sure i have the specific answer but i  council really i believe the council is vested with authority not a lot of the program and i think they have to follow the specific statutory procedure in the power that's that's certainly my opinion which includes the deference argument that i've made to the court counsel's office you know it's there are obviously a lot of issues that have been briefed i see the stacks of paper on the day asked respect well i think that there is a dispositive issue before it had to do something that was asserted in a congressional report if it appears that the agency thought it was a mandatory command whereas several of our  documentation there are several other very clear references however to the conference committee report language as constituting nothing but conference committee report language  fair and read the entire record if if it's only sort of cites for the record of the other it certainly should look to those citations in the record that reflect your representations by the newsroom self and the vice president for fish and wildlife and not isolated excerpts from emails for other backroom documents i'll certainly go back and make sure i look at everything in the record or trying to come to  one direction might be an alternative route for holding but if we thought it was interesting we could rewrite that or would it be a tick in other words if it's an alternative do we have to can can we address those statements in the record referring to the conference committee report is binding legislation or iran and that's not a correct state in the law however as it was getting earlier there are proper grounds in the record to support bonneville  actions of members of congress at the time going forward shortly after the conference committee report was issued in fact some of the embers of congress who were opposed to the conference committee report language want to make sure that so let me just mention a couple of those that i'm thinking of and you tell me if they are covered one was that there was a huge passage advisory committee as i understand it with the fish passage center that is not not the functions that are going to be carried out and there's no dispute about the qualifications of the teas i also if i may quickly point out the program itself involves brigs of action measures and objectives and  case i heard something today from the council that i felt compelled to respond to on the issues that we do care deeply about and that's the general substantive meaning of the underlined standard for the council from the compact believes that our program and our power plants have our serious substantive obligations on bonneville even while at the same time bonneville is not found in to every line provision and measure and i realize that someone said it's an unusual statute and it's one that requires quite some thinking as to how it would work on pages thirty to thirty three of our of mean briefs we gave our understanding of how that works in a practical matter and we would like the court we would  the court to understand consistency in the way we have explained it which we think is consistent with the way con congress has understood it as a general matter and apply the standards as we understand it as you analyze  project decision is valid or not i took it from your brief that the counsel would urge the court if they can do so to clarify what the concern is the obligation in the the agency with regard to the significance of the committee reports are can we still go on to address consistency and how without it being  made a particular decision that's being challenged as not consistent if it wasn't compelled to by the senate it's still a decision they made it would seem that would be something the court would have to deal with is what  consistency question whether or not you need reach and i i believe that the answer is no that it would be improper to reach that question because of the fact that this is not going to be harmless error and that goes back to the harmes that i responded it would harm the administrative process the arizona categories case in the motor vehicle manufacturers case are clear that it's up to these courts not to allow agencies to make unsupported decisions and then to search for the evidence later after they've been challenge that's not how our system of passes advisory committee which was instituted to oversee them because of grumblings and complaints that they weren't doing objective science that will not be continued under the current scheme of things with respect to the comparative survival again the center and the continued language continued operational centers and in the program bonneville commented on the program both in two thousand and the amendments in two thousand and three they never indicated they were able to participate in the program