minutes hopefully more in reserve in the remainder for the rest of let's start with our national environmental policy act concerns and initially the first issue we like to talk about is the u s failure to explain why curtailing the turbines and this is the wind power project of course in the in the desert detailing turbines which is temporarily stop them from spinning so that they don't kill raptors and birds why that would only be applied to golden eagles and not some of the other sensitive raptor species that are found in the area of the project the u s concludes that the project will have unavoidable impacts on numerous raptors in a particular the state listed swenson stock which is listed as endangered under state law and there's a number of other protected hops as well who are in the area and will be affected by the project there was no discussion in the us of why  would not be applied to these other senses species who also have laws applied to them that prohibit that the take of those species why it would make sense to curtail the turbines only for golden eagles and not for these other sensitive species the only discussion anywhere in the us is found in the finally i seen the response to comments where it says the applicant is clarify that during operation and maintenance the radar will be programmed to monitor the sky for raptor species however curtailment of operating winter vines would only occur for golden eagles that are detected in or near the project site that's the full extent of the discussion of why this this obviously feasible mitigation was apparently rejected for all the other sensitive raptor do i do with that because it seems to have mitigation measures innit that include post construction monitoring a review of the monitoring data by the advisory committee he even gives flexibility to require additional mitigation measures of the data reveals the impacts to birds and bats that exceed the lower levels and dissipated in the f b i s at city are seven seventy four through eighty six i read through all of that it seems to me then the f b i as says because of the low use of the site i rapped or sinbad's the collision risk for most pc's low but when i go to the mitigation measures even in the a p b a p p p i find all of these mitigation measures that could be used but the l m does try to argue that discussion of other mitigation measures is sufficient to justify ignor an eagle plan and then i tried to find what there is for the bats and or the raptors and so or the birds other birds and so i looked at all these particular situations if you will or measures in the record that would be what we needed to do and i saw there is more there are mitigation measures there are going against is but the discussion of other mitigation measures is not philonous to why or any reasonable explanation of a provision in these other very clear take prohibition well let's go on if you're going to go with the swathes of hark here's where i what i saw the f b i s says the projects side does not appear to be a major migration cor  or use the area by the hawk is relatively low so i said ok i got a look at that and i got to find out if there's anything that would give substantial evidence to sustain that there are migration surveys there's a weekly point count studies that were conducted over the course of the year there was an analysis of arab conditions of departure free of the project area that made it unattractive to migrating birds all of those would points out what we have as relates to eagles and what is there is a statute well in place so we don't have that statute does relates to these other things so what we're looking at is does the f e i s have any substantial  the golden eagle act and again the low use of the golden eagle if that's the justification then it would be equally justifiable for the swenson sop so the absence of an explanation of why curtailment wouldn't work for the similarly low use based on their flawed surveys we believe that eagles were seen for six point five hours out of the twenty eight hundred hours they were looking at this one since ike was seen eight point five hours how is there a real difference there in terms of the feasibility of curtailment this should be an explanation capricious well to the extent there's evidence in the record that curtailment is an effective way of preventing certain hopefully a certain number of the eagles from being killed by the blades then it would be arbitrary and capricious for them to ignore that evidence that the evidence they put in that hey it's going to work for the eagles in the question becomes why didn't you explain even why it won't work for similar other similar raptor such as ones inside and perhaps others so we're asking that the sent back for them to fill in that question which is had had they decided to treat swenson's hawk and eagle the same which is what you're asking but i'm asking if they had chosen a different thing which is that they decided not to shut down the not to curtail the operation of the of the  turbines would that have been arbitrary and capricious it's a record of your case your honor so it depends on what they had said about why it was in feasible well that we have we now have we now have raptors in which they there's a finding as to both that there's very low usage here so would it be an arbitrary capricious not to have stopped the turbines when when the raptors came through i believe yes if in fact it's feasible especially if it's not going to curtail the turbine so much that it affects the power output in any significant way that in that case they should shut them down for the infrequent times when it is very sensitive species whether it's an eagle or still listed swenson or the other fully protected species that happen to come into the air they should just shut them down for a few hours or even a day and they're not going to see any impact on the power outage or anything like that there's no information the record that says any of this would lead to any arbitrary and capricious what they did in this particular situation with this survey yes because the main reason that the government argued it was ok just use what is in fact an arbitrary survey period for swanson socks was because all these all these other kinds of census species and addition is not is that there's so many birds using the site so many different species that they can't isolate or do a broad enough survey period that would allow them to capture the entire migration period for the most one of the most sensitive jury didn't buy it what i have to find is in the are there any is there any substantial evidence to stain what was done not your argument to suggest you didn't do it right this is the way i would argue a jury believe me and they government makes a different argument and says this this this which i went through and so then again i'm saying to myself given my standard review it doesn't seem to me that i cannot do what happened you've got to have some basis for doing what you're doing but if you do it's not arbitrary and capricious just because it doesn't agree with the other side that's what the jury does for this piece you are i do agree you have to have substantial evidence so not starting a survey for the  sensitive species flying through the site until about a month after it starts its migration for three out of four seasons and then adding on a whole month after their migration period ends is no that's not evidence they've failed there was a weekly point count study conducted over the course of a year right and means there was an analysis of the air conditions the biography of the project area that made it unattractive to migrating birds right those are are they not in as every six planes one of those a different kinds of surveys those don't pick up migrations those pick up even point comes to just half an hour a week at different locations you're not going to pick up the same information as the migratory surveys so the key to the migratory birds and other surveys are not designed to pick those up so that's explained in the brief so it's still an absence of information it's arbitrarily picking almost random migration period as applied to this once in fact missing a bunch of  period and tacking on arbitrarily a full month where they're not even going to be there in an averaging out their use from that and my standard is as i i understand it that the f b i s need not be based on the best scientific methodology available only needs to have a reasoned analysis of the evidence before it would you agree with that i agree though i don't think this is a methodology argument or this is common sense if you're ok i mean if you're looking for science and socks the most sensitive bird flying through the sites eyes perhaps eagles and you pick a migration period that adds a whole month on that they're not going to be there that's arbitrary that's that's not evidence that just doesn't make any sense in terms of that particular sensitive species migration period i'd like to touch on cythera need argument that we that we are concerned about which is the availability of studies referenced in the  other energy facilities and as a result that the collisions would be low as well that statements in the i asked it's a core component of the analysis and we didn't have the thirty four studies that were the only studies relied upon by the i r s for the comparison with other facilities until we got to the final yes appendix l six we have these references to thirty four studies a graph put into the appendix came up there wasn't available during correct man i had been absolute final form but the extent they rely on these thirty four studies for conclusions made in the us itself which is i mean i looked at the national parks and conservation association case and i looked at what it was trying to say there and so really i'm trying to and again make a if you will a deferential decision that they didn't do what they had to do and i read national parks that the  p need not be in final form so i'm asking you is this just not enough they had to have it i mean is there was no question you agree that it was all in the final right the studies were  on to say it's a low use site and hence collisions are going to be low for raptors that wasn't available during the comment period the expert biologist commented on that when it came out in the final saying none of this was available we didn't have an opportunity to good morning and may have played to please the court i mark hay from the department of justice with me at counsel table is luke miller from the department of the interior also i counsel table is then erickson  d nick yost who represent the tio win facility i'm going to be taking fifteen minutes and mr erickson will take five and i think we're going to stick with that arrangement for all context the first is that the system facility has been completed and it's been up and running since the end of december twenty twelve which provides three hundred fifteen megawatts of electricity and  it's offsetting up to two hundred eighty eight thousand metric tons of greenhouse gases usually and the second point is and i smith some of your questions pointed to this the basic conclusion that the environmental impacts here are relatively modest is a function of the that are oriented in a way that would be used by raptors during their migration and therefore it's just not that attractive a it's a relative it's a relatively low use area and that's what leads to the that's the basis in part for the iesus conclusions that the impacts are relatively minor if i could response to a couple of mr in response and there were comments on that in the comment period that asked is is the intent to apply curtailment only to eagles or to all raptors and the answer to the question was to clarify no that option as in was intended only to apply to eagles because of their status special statute under the under the eagle act curtailment is an unusual mitigation measure well it seems to me that you is is a unusual mitigation measure because it's expensive and difficult it's in it was proposed here as an experimental measure because you have to have radar that identifies the birds or a biologist so it's difficult to do it's being applied here because of the special stature status of the eagle the caliph the california fish and game department which has responsibility for enforcing the california wildlife laws consulted on the a t p be there a member of the technical advisory committee that addresses decisions about whether and when to  mitigation measures and they signed off on the mitigation approach that's adopted in the a b p i think i think council's argument was look you do this for one protected bird and it doesn't appear that the even though the eagle has a special federal statute but it that the eagle gets any more protection under federal law them swainson's hawk does under california state law so the very least them the department had an obligation to explain to the bureau had an obligation to explain why it was going to do the same for this one instance hoch was actually asking for an explanation not necessarily for mitigation but i think part of the explanation one has to read between the lines so which would mean which is to say an explanation wasn't forthcoming the explanation that's in the response to comments is we never intended this provision to apply to anything other than eagle eagles much more disruptive to the operation of the of the project and of and yet much less energy so that part of it you have to read between the lines but on a an enormous project like this and highly detailed analysis like this it's impossible for the agency to to explain every nuance of every of every mitigation measure  with respect to the timing of the surveys the raptor migration surveys were designed to capture multiple species not just the swain so it's possible to go in and look month by month day by day when the swainson's hawks were identified the averaging data is there the individual data is there there's nothing misleading about the way the data is presented and whichever piece of the analysis you look at it shows the same conclusion that the the presence of the hawks is relatively limited our brief also goes into some detail about  their arguments for the timing of the surveys the peak presence of the hawks at i think it's so far a go springs which is the area i think forty miles north east via the project site and again that comes back to the point that the the topography of the site is not such that it is conducive to the mite migration because of the location of the ri lines the orientation of the ridge lines and the lack of the relative lack of prey  study what about the studies i think the easiest way to to deal with that or one easy way to deal with that claim is to compare the information that's in the california energy commission guidelines the california guidelines on mitigating impacts the birds and bass which was published in i think it's two thousand and eight and which is cited in the draft a b p p and the draft  s there's a table there which is in the are the supplemental excerpts of record at three twenty five and that cites about a dozen studies and it has a graph that shows this curve or the range of raptor use the highest is album on paths and near the bottom end is of the cio if you compare that to excerpts of record seven sixty one which is this the table at that same table that same data expanded in the a b p p the a b p p cites more studies that some of which were not available at the time some of which post date the california guidelines but the the the basic thrust of the data is the same ok theo is way down at the low end of the of the curve so there's no basis the p c to say well we were surprised we don't know what the basis was for this low use this new the additional data is humility of or supplemental to the data that was already identified in the draft well it seems to me that his biggest argument is when you put out the draft you didn't have this these additional data to show methodologies and we didn't have a chance to comment well that that is their point and my point is that much of that data that they say is new is in the california guidelines which were cited in the draft and that the additional the a p b a b p p which is the appendix but then included in the final at there's additional data that not all of the data there's additional data in the final a b p p and in the final the i asked but the additional data ad additional data points but it doesn't change the shape of the of the curve the shape of the graph it doesn't change the fundamental conclusion that's been disclosed in the draft which is that this available studies show low raftery use at this at this  if there are no further questions i will turn the  please the courts man brant erickson here on behalf of aka to express and pattern energy and as mr hague noted with me at counsel table is mr nick yost i'm going  to i guess i'd start by pointing out that what really is being requested here is simply that we do a little bit more we do a little bit more on this issue do a little more on that issue this project was supported by l s decision supported by an environmental impact statement that weighs in at forty three hundred pages supported by nineteen technical studies including fully developed mitigation plans for eagles and a separate mitigation plan for birds is a very thorough analysis for the job given by the statute it's a procedural statute and the job given to the agency is to do a reasonably thorough job of evaluating taking a hard look at the potential environmental impact and to focus on the first issue raised by council which is the mitigation plan the avian mitigation plan and the idea of curtailment first of all you know this there's a certain amount of science by lawyer going on here in this idea of how come you didn't say how come you didn't design the system to segregate data points and hawks it's really nice idea to develop well after the fact but in terms of the information that was available and and you know the issues were raised and presented in the course of discussion of this you know we start with a draft  that identifies at the r one twenty six a list of possible conservation measures that may be considered if the data post construction data that review shows impacts are greater than expected and a list of possible measures are going to use and one of them is to use curtailment to protect biological resources so that then triggers some questions there is of course the specific proposal for for sale and for eagles and that triggered two questions one from e p a and one from basin and range watch is it your intent to do curtailment for raptors or just for eagles just asked the question and that question was answered in the response to comments that clarified clarified that it was going to be applied for eagles now you know why not do more and always do more and always do more to add to offset impacts at this site based on the evaluation that was done the conclusion was that the threat to two raptors is very low the collision risk is very low because the number of birds present is very low and this leads to the issue about raptor studies and how that conclusion was reached as we explained in our briefing pages twenty two twenty five of our brief goes through a detailed evaluation of the data that was used in the environmental impact statement which goes well beyond this  data on other facilities actually relies upon the raptor analysis reports that were prepared for this site which also includes information on other projects now as counsel for the government has pointed out this comparison chart that's at the back of the final avian mitigation plan which loves it which is at three twenty five  twenty five sorry it is that the r seven sixty one of going to face oh s e r three twenty five is where the california guidelines graph that looks basically the same and different  it looks a lot like the graphic that is it oh s e r three twenty five which is the california fish and game guidelines which were published in two thousand and seven so there is five years four five years in between so there's a new study some new information but the basic concept that there is a continuum of raftery use at sites and as a result a continuum of raptor collision risk is not new i something that's well understood by the individuals in this field and i would say the appellant's expert mr cashman comment was made here and made in the briefs that the opponents did not have an opportunity to comment on the pile in fact mr cashman under cover letter from the light unit from the labors submitted fifty pages of comments on the final yes including thirty five pages of point by point rebuttal to the response to comments fifteen pages of additional comments these all appear at zero s c r three forty two to three ninety one his comments both in his comments on the draft d i s and his comments in the final the i s refer reaper repeatedly to the california guidelines who clearly was aware of that document which is a fine it would be known to any expert who works in this field it's a common document for use in this area and also note that under the need for regulations there is a process laid out where a final yes has to be out public for thirty days at a  minimum here it was almost two months and during that window under the regulations it forty c f r fifty three point one b any party can provide comments on a final the i asked after it's been issued and that clearly was done here not just by mr cashin but by a number of other parties on the other two issues quickly the swainson hot data in essence this is just how come he didn't add a couple more weeks to the surveys that were done the purpose of the surveys is to get a representative sample of the birds that are present in the site to have a good understanding of what the potential impacts are in the environment the studies were clearly adequate to provide a very good understanding of what kind of presence there was and they answered the question of whether or not science and hawks that were migrating to break those springs passed over the site and that's demonstrated by comparison the data from the two locations also provided information on all the other birds and raptors and other birds are migrating through the area as well as information on the resident species also would point out on the event few references to the state statutes so i just want to make sure that we're clear that there are three state statutes that are referred to in this case section thirty five eleven of the fishing game code under that statute only applies to golden eagles as relevant to this case fully protected similar in status to the ball golden eagle protection act under federal law section zero eight zero applies to the take of listed species only relevant here to swainson hocks in the avian mitigation plan an e r seven eighty five there is a requirement to consult with a technical advisory committee including a state fish and game representative should one swainson hawk or other threatened or listed species be taken right away condition twenty four requires a casino to obtain a take permit if the state requires finally three five zero three point five which the p c argues flatly prohibits take of all raptors and als he has applied if you look at the california guidelines appendix g which is zero s e r three nineteen to three twenty five california clearly anticipates and understands that raptors will be killed by wind projects and they anticipated that and provided guidance to permitting agencies and how to evaluate my time as  so i think in this case here certainly the devil's in the details and i think in all this of course is in our brief and in the record it's important to see what really happening with regard to swenson socks on th side during the course of the surveys the word fifty one swenson socks were observed moving through the site in spring two thousand and eleven and i think some thirty six or thirty eight the next year now these movements shown in the record were within a very limited period of time and it's clear in the record that out of five hundred twelve total minutes of slants and soft observations and that was a lot of minutes  two hundred ninety three minutes were within the turbines rotor swept area fifty seven percent of the time observed so it's very clear from the environmental impact studies as well as borrego certainly it was no surprise that here these observations were made only in two years and they found something like seventy five slates and socks and also within a limited on the other significant factor here is that swainson's hawks those there are many and some are a go the species that is protected under state law are threatened rather under state law severely damaged in various ways and so that's why the state has declared a threat now getting back here to the technology council for the pattern  indicated to the start of the scientific lawyer and here it is very clear from the record that the murder on radar technology that was contemplated here had certainly the capability if it could detect go in  s to also detect by virtue of their shape other raptors so that i don't think there is any doubt that the merlin technology which i think the record indicates that had been used somewhat in other places had an undisputed capability for detecting the shapes there was also a biological monitor in a tower who could observe birds who've if he could identify going eagles could also identified at least in this case an approaching raptor like a beauty off even though they might not be able to say whether the slants and sock or not but the point here is that ailment and that it also suggested that the capability was there by virtue of merlin razor technology and the biologist in the tower and so the question is and the question is not answered by saying well it was their intent only to protect golden eagles because going eagles have a special status under the golden bald eagle protection act that's not a sufficient rationale the there is no explanation in the record basically especially in light of the jeopardy to the swenson socks flying fifty percent of the time during the rather swept area and it is true that most of the year the year they're not there but they may well be there in the summer observed in fall migration but the majority of these seventy six over two years were during spring migration hardly surprising in light of the  proximity of a very good springs thirty five miles away where hundreds and sometimes thousands of swenson socks coming up migrating all the way from the pampas in argentina are found so given the capability of that system and given the special status on the california law suites and socks truly threatened it is certainly unclear to the plaintiffs why that to the extent that you're going to examine is recognized as a really an acceptable modality in these projects it's threatening that it could threaten the economic viability of the project in this case we think it would not because  curtailment would be concentrated in just a very limited period but pattern only really basically wanted to protect golden eagles because they did not want that extended to other species  in summary you have to look at the conclusion that this is a lawyer's rafter area that's just a broad generalization but focusing on a particular species is a special status under state law and for that matter for purposes of the i am a special status species protected under the c d c a plan and other provisions you have to look in more detail about those surveys  showing when the raptors are present and to the extent that they are exposed to jeopardy by flying in the rovers what area so that i think is i think that this is this the raptor deserves that degree of scrutiny thank you thank ounces for the argument doesn't protect account versus the oh i is submitted