thank you your honor may i please the court samuel pushing on behalf of the appellant's taylor shellfish in the pacific ocean off the rose association this appeal involves a district court decision that vacated eight hundred and ninety eight existing authorization authorization covered almost all shellfish farming operations in washington state though those authorizations were submitted pursuant to the need to have permit forty eight which has been the primary authorizing tool for shell fish farms in washington since about two thousand and while that nation court ran effective really absolutely the court can the court the verifications that were on that were revoked by the district court here don't expire on their face until march of two thousand and twenty of march of two thousand and twenty two so if publication of nationwide permit of four hundred and eighty two thousand and twenty one version of that permit has superseded the action at issue here and that's simply not the case bertha's that that permit is not yet in effect it doesn't go into effect until march and then secondly rather and of course we don't obviously these are an expedited basis for review but we know what that actually means and i was to practicality out appreciate your comments what do you think this means for the decision and reinstate those existing verifications and with get those existing verifications go back into effect they will remain in effect even if the day she was permit two thousand and twenty one goes goes is is it ultimately adopted those existing verifications will remain in effect unless and until they're replaced by a new author of the project specific authorization so what growers can do is nationwide two thousand and twenty one goes into effect nationwide forty eight rowers could conceivably go to the core and ask for coverage under that we know that process takes something like least eight months based on the two thousand and seventeen verification process so i think the court growers could request coverage there and ultimately may receive coverage there but in but that would that is not a vehicle for allowing planting immediately which is again one of the requests that we've made is that and in the basis of our quest for executive order except that i did review is that growers are heading into the spring planting season and they are they no longer have authorization to plant their shellfish farms and so one of the that and that they've they're facing if they can't plant this spring the record demonstrates they will have an inventory data that a manifest  september your right and so and then some that are very mechanical or other things that need to be done in preparation for that plan absolutely your honor the growers if they're going to move forward with planting need to order see the need to order women and they need to hire planting brooms so that's that's the basis for our request for an expedited review is that growers need to make those decisions if they you know converse lee if the court is going to hold the order growers what that will get expedited decision will give growers them time to go through an orderly wind down of their operations so that there's not so they're not unnecessarily expanding resources that they then they then will have lost which for anybody to do anything that that's our position your honor i'll just move to the our discussion on the merits of the move so moving to the merits i think there's two fundamental pieces of the clean water are that i want to him before i get into the district court's decision  st section four hundred and four which authorizes the court to adopt adopt general permit processes that's a provision of the act that went into effect a couple of years after the initial at the nachman of the clean water act when it was clear that some pro permits for some activities that resulted in minor environmental impacts were being the words were slow to issue in and that was creating his shoes with them of course regulatory schemes of the congress authorize the war for activities that create minimal impacts to decision that shellfish provide environmental bit of this such as water filtration in the waters where there are no the district court pointed to three errors three distinct errors in the chords in the horrors of nationwide forty eight adoption in washington and those are summarized on page six of the first the core of the court criticize the horse analysis is based on quote selectively chosen statements in the scientific literature this just  this the conditions that are in place in the nationwide permit and the fact that the individual authorisation will be reviewed the district court didn't actually the didn't actually take issue with the selective quotation it case you with that it disagreed with the c explanation of why it was based what of the study that was using and in some cases disagreed with the actual stunts and i think this is a fundamental error that was made by the district court in that as a failure to the birth of the horse expertise this cour made clear in the conservation congress for has been leaked case that the determination of what constitutes death scientific data available belongs to the agency's expertise this is where reviewing court must generally be its most the district court did not the part of the course expertise and in fact it did exactly what it accused the corps of doing it selectively brought in a document from the administrative record a draft impact analysis that was committed that  prepared by a staffer in the seattle district the author of which just some describe that as nonsense and in turn for one and relied on that document to bolster the courts determinations of impasse at the same time the court review the court didn't review the the programatic consultation documents which i'll talk about in some detail in a minute but those documents were documents that evaluated the interactions of shellfish farming with all aspects of the environment and were both finalized documents second the nd criticism of the district court was that the court of the corps relied too heavily on the external permit and general conditions that were too general those conditions limited the scope of the of the nationwide permit and i think it the program so it does a higher level review at the headquarters level and then it doesn't more regional review of the division level and then as i said here every individual every one of those eight hundred and ninety eight individual authorizations was nation national decision document then i think you would find you would need to find that that permit was not about because i do not think that the wives of leo and downs for a review i don't think that's what happened here the nd thing i would say though in that instance as entirely based on its conclusion that there was no there is no evidence in the record of environmental impact ok let me let me just ask the question differently and i want you to assume for the purposes of this question that the district error there the clear error that the court committed and again recognizing that the nation and even of the nationwide permit is invalidated the clear air of the court and that it is in finding that there was nothing in the nothing in the record to support an analysis of environmental harm and even if the net national analysis was an adequate the record here clearly shows the program out of consultation documents which are six hundred dollars pages of detailed analysis by expert agencies that support a minimal impact determination t the district court didn't even look at those and evaluating again no he's not evaluating the propriety of the nationwide permit he's a value weighting these individual verifications to see if they result in environmental harm he erred in not in not looking at those those i'm not talking about the merits i want to be very clear with the rivet he is based on the review on a conclusion that the the record does shows environmental shows does not give any evidence of environmental harm in the record actually has a robust harm by suspending planting going into this ring planting seeds thank you thank you we asked a lot of questions you may have one minute for rebuttal on this i think on this and other counsel i don't see that you own planting last year in areas that were deemed not to create the problems that were otherwise identified and if i'm correct about that work what is your position with my arms are great too i don't i don't think they're just alleged but i understand your position so bottom line what is your position with respect to continuing in the next season and what happened in the previous one our position against it a problem of the now that was never done at the outset to ensure that these impacts of the minimal allowing the continued placing all the activities under the district court's part well i don't think that the that the court made that exact finding that it wouldn't be you know harmful i think it was again to including all the operations underneath the permit that was proper because bucket or is not an injunction is not narrowly tailored and all of those authorisation were just approval or ok to use a nationwide permit which is a single permit this is process here there's no further new and ever done for these operations under a nationwide permit only the process that the national level and that's in fact the only thing and that was inadequate because i pesticides and you noted no discussion only of the effects to washington state even though this permanent is used over ninety two percent of the time in washington but was nationwide it really is mostly with mostly washington and i think you'll also find that the national decision thank you your honor let me start right where ms benson left off with gooey duck clams district court's remedy decision was based on his review of the record which showed that there are by heaved under the existing authorizations the eight hundred dollars to say nothing of the additional forty thousand dollars additional acres that could be planted under the a permit there are already seven hundred and twenty nine million dollars additional shellfish that have been added to puget sound by the existing gooey duck operations to say nothing of how many oysters or clams are also added of other types that's why the district court was taking so much care to try and fashion a remedy he were recognized and this is a well seasoned respected jurist from the western district judge lauzon and he recognized that there is some economic consequences you're even though that's what the law specifically mandates but he wanted to try to come up with a compromise the coalition and c f s and the tribes proposed the compromise that was  so the court was doing its best and under an abuse of discretion standard i would argue did a phenomenal job of trying to balance these remedies are these situations here the court was faced as with what would be doubling the impact if he were to allow another season he did find that adopting a compromise would be possible and that it would be perhaps less harmful they're on this permit authorizes seventy two thousand acres of impacts we only have thirty eight thousand so far because a judge allows nick issued a ruling that vacated the permit the permit the need  documents still have to be able to justify why seventy two thousand of these acres of operations are allowed we already have me so i have i have just sort of factual question and i'm not sure this is easily which is protected by treaty rights in my correct about that that is my understanding as well so what what what is the sort of percentage area or percentage is the tribal portion right you know unfortunately that i do not know the answer to mr place j m a but my understanding is it's quite modest because most of the tribal plantings are in north puget sound most of the industrial scale aquaculture operations authorized under nationwide forty eight are in south korea good sound that's what some of those maps i was just citing today and so  the problem for the sound is that there's never been a cumulative impact analysis done that outlines what the you know impacts of these many one thousand operations or eight hundred so far but what authorized in the permit is more there's no analysis of what the effect is on whether it's orcas salmon porridge fish meal grass it doesn't exist except in a draft from the seattle district judge last night was careful to note that that draft stands in stark contrast to what was actually approved and what was actually relied on by the corps that draft relying on the same he say documents that the pallies now say the district court ignored contraire that draft joao's that relying on those documents produces a finding of significant impact even for only the limited scope of that draft which admitted on its own terms is only a partial draft that those e s a documents show on their below that they are there is going to be significant impacts that means there should have been and yes at the national level now mr bush i talked about tearing and that's an important issue here there's no it's nothing wrong with cheering your decision your process for approving there is fundamentally something wrong with trying to tear your analysis or your clean water act analysis or your a p a justification or both you can't tear those decisions down to a district engineer i would also note that if you read his opinion closely judge last nick found that there was no evidence in this record this year of prior plantings if the permit teas or verified authorized operations had applied for an individual permit by december to the extent that any operator and that was in his decision in the judge's decision in june so they had six months to know that ok i got to submit an application to the corps they can now harvest as well but as to planting that it my understanding is that's correct that they are not going to be able to plant under judge laz next decision for a period of potentially a year or april through september october if you include going to x i would note that there's an interesting causation issue here if the new nationwide permit goes into effect and as it will it potentially in march there's no little effect on planting from the blockade or really because all those people applying brothers ations the if they can't plan it it's because the court process is moving too slow under the nationwide berm that's not being caused by the doctor that's being caused by the corps i would also note that you have to remember practically this is a five year permit the growers all knew when they got their original authorizations it was only for five years the effect of the doctor was only going to lose one year and then they would have been out of a permit anyway they always plan on well there's a possibility i'm at least i assume they do they should that there's a possibility i won't get another authorization so i need to take that into account so this is a situation where the growers knew from the start that we were seeking doctor ultimately the judge agency if it has a rational basis or reasonable explanation for its approach judge last night found that the core didn't hear and the agency can't ignore its own experts and dr brzezinski who did the draft can w to three things if i can one we have we have always propose a compromise buckets or we have proposed what is what has been adopted in every other nationwide permit case which is a prospect of only baucus or we said we supported that remedy from the get go we have that we are asking only that the retroactive aspect of this baucus or the reverse nd in terms of whether the district court the district engineer has considered has further condition to permit the record is clear that every one of these individual verifications contains thirty two additional conditions that are aimed at addressing exactly the environmental impacts that the district court was concerned about and then finally just in terms of our requests for expedited review when i recognize that we are asking for  a rapid review we would request if there's any way for the court to give some indication whether it's going to uphold or reverse the court's decision when vavasor it would allow growers to plan to plan economically whether they should be ramping up for a planting season or winding down their businesses in light of not being able to plan so if there's any way to get even some brief to be followed by a full decision indication of where the court's going to go that would be very helpful for selfish and other times i just want to clarify