before we start let's talk about little housekeeping that now you all are just nobody's splitting time with you all it's the other side that's going to split time right very just want to be going to argue over there as well while you're both can argue are by your side both arguing to understand how you splitting it but the court's permission i was going to spend ninety minutes on the sole issue raised by my client which is the protect our communities foundation unlike torture treaty issue which is the only issue we've raised on appeal ok and my with procedure in this case we have a situation at least from plaintiffs standpoint in which the government has in effect acknowledged that the project as authorized will operate in violation of a federal law the n b t a let me explain why we believe the government has essentially locked itself into that position the government has acknowledged point blank and this is in footnote seven a page thirty six of their projects these are taller than the size of the football field massive spinning turbines they reach up to two hundred miles per hour at the tip of the turbine span and when they're emplaced where birds are  present the government has acknowledged and seems undeniable particularly based on this it is rated record or experience with other pat wind power projects that migratory birds will be killed there may be question as to whether a particular project will kill more or less birds but they will kills you know you've got the claimant separate issue but this is we've been analyze this we've looked at all this and we have a proposal we've studied all this and we think there's a way that to we could probably do this but we're not given a permit to do this this is separate issues so we're talking about a framework within which a permit can be applied for so they're saying i understand it correctly we're not killing any birds we're not putting up any great big propellers to construct this project on federal land one hundred twelve thousand acres of federal land and just to be clear about that so this is not a private party project that could be done with incidental or no such thing but i mean let me  understand what you're saying here the fact that they've said that you can use this right away when you get a permit doesn't mean that they're using it without a permit right in other words right now as authorized if you weren't challenging it they would still have to go through a permanent tooley would have to go through a permanent process to put anything in wouldn't think that's not correct or ok don't know why they have authorisation and the right of way begins that the government supplemental excerpts of the record it's confusing we have multiple excerpts but it's the government supplemental experts at page four ninety which sets forth the it work the approval the final federal approval to construct this project on federal land in accordance with the terms of that right of way appreciate you rather getting to what we think is the absolute nub of this that's our job and i'll try to make it my job to provide a reasonable answer and that is when unlike other parts of federal law where they were quite explicit about saying for the buffer the danger of species act you must comply with the following terms in the biological tejan national start preservation act you must comply and get a permit and authorization under that statute clean water act clean air act same thing when it came to the migratory bird treaty act although they could have said and would have said if they were operating the way your honor has suggested go and get a permit under the migratory bird treaty act before you operate this project they didn't say that in fact not only did they not say that but they conditioned operation of the project which refers to the aviation plan specifically we're talk just to make absolutely clear about this pages three somebody one one twenty six four sixty five and five zero four what they actually said was we want you to avian and bat protection plan as well as a monitoring plan that will monitor the birds that you're killing and is premised on the proposition of the assumption that they will kill birds in violation of the  the position that they're not required to comply with the migratory bird treaty act at all well they're taken taken that risk suppose well they're taking the risk but in an a p a case the question is whether on that record and i think this is what makes this case different from a criminal proceeding on that record the question for the agency in authorizing the project knowing that the company takes the position that they don't have to get an entity a permit and more importantly perhaps conditions and on things that are bird related but are not involved getting an advocate permit whether that is in accordance with law or a recognition of procedure required by law and our view is on this record the court at least has to conclude that this is an internally inconsistent agency author is only counseling that i i used to practice a lot of environmental out in the the real world and i'm used to reading a lot of material but this case has thousands and thousands and thousands of pages and like everything of that nature  there are internal inconsistency is but you get down to from from my perspective and i'm hoping you're going to help me with this unlike for example the endangered species act where the agency has its statutory responsibility over see everything you don't have that with this treaty a treaty actually is you can't kill birds unless you have a permit not been proven very much i mean it's the permits are pretty rare and we're not giving you a permit you have to apply for that car or take your chances the other way we think that when you do you've got to consider these things but they're not authorizing it's not like the fish and wildlife service in an a case they're just saying you've got to take all these things into consideration we've considered in our need valuation but you're going to have to go from there i feel it's very different than any essay and so you have the question what's truly going to do if you're saying well they've admitted they're not going to do anything and it's going to go ahead well they're going to have to face the music if they've they don't get a permit presumably because as you say without a permit you can't kill birds or you're in violation of the law but that's not what we're dealing with here as i understand it we're dealing with a situation where the government has through an exhaustive process a really exhaustive process is looked at all these things and laid it out and basically said we think this is do we think is doable we want you to consider all these things he doesn't say will give you a permit but it says we think it can be done you're go further federal approval that's correct or rather they have final operation final authorization they could have said in their hundred ten stipulations as they did with multiple other statutes and i think using your honor as examples of many many other statutes they said you have to get this permit as a precondition under the clean water act all these other statutes they didn't say that for the migratory bird treaty act not only did they not say that they included a condition which is inconsistent with that and it's specifically condition thirty seven on page five o five of the supplemental excerpts which it says go and create an avian bird protection plan which everybody acknowledges is not the permit required by the end bta so if you want construing this would say that's our obligation o and directly or indirectly and they've also said if you have one bird you can have these people checking this out of you have one bird is killed or you do this if you have more than one bird kill a can do that that's going to be built into any permit application i assume because right now as i read it they were speaking in the abstract they're not saying as i understood it you can go out right now and you can build these things you should know you got to go through all the processes you've got to comply with federal law and apply was state law and of feds and the states are all involved already in this thing and i guess my answer and that i would sit down and hopefully reserve time a bit of time for rebuttal is that here when they address the m b t on this copious record knowing that there would be birds killed in violation of the act of knowing they could specifically condition it on getting an m b a permit they opted not to do that and on this record our view is that that's not in accordance with the migratory bird treaty act or the procedure required by the employer you think they have to do first one first i think they should say explicitly which they did for multiple other statutes your honor get migratory bird treaty a permit before you kill birds that's the whole purpose of the n p t not to wait until you've killed a bunch of them and then say well gee i guess we violated the law i will do something about it that's our position scheme that is supported by regulations as well requiring a permit for the taking of golden eagles that is the vault in gold and you go protection act at sixteen a c section six six eight and i prefer the court to the parallel provisions in the record of decision in this case the council that at this moment that no turbines are calling that have been built and no birds of any type of been killed by those propellers not yet you're not yet right so we're dealing in the after you're asking us to construe all of the language in these documents to say that unless the government expressly requires that there be a permanent obtained under the migratory bird treaty act and the golden eagle act and so on that the whole thing is out the historic preservation act the clean water act and the endangered species act the record of decision is careful to note exactly what additional permits are required in order to meet the requirements of the r o d and operation and provided only for the preparation of avian and bat protection plan which contemplated bird douse and require that the mortalities be tallied up but we feel that that's too little too late that on the last since under both statutes a permit is clearly required if the government had an obligation to tell the permit this is the way this is these are the route rules of the road you've got to get these just like you have to under all these other statutes the reason they didn't your honor is that at the time of the record of the government had not yet accepted the position it's now adopted which it mitt that incident  of of migratory birds and golden eagles by turbans who are who are designed to generate power they're not designed to kill birds but incidentally they kill birds it's admitted it's a direct impact the government had and we construe it as saying that in order to comply with all appropriate federal state and local laws that before the turbines can be operated that a permit yes that's exactly what i'm saying if we construe that in connection with the language of god why with all these laws that that was required would that satisfy your concerns i wildlife at the time the turbans are turned on for their failure to issue a permit or private right of action under the under the treaty act i don't believe we have a private right of action under the treaty act act permit because as tooley has stated previously it doesn't believe they're required if there is no action by fish and wildlife service there is no final agency action that the public can challenge so i think this is the end of the road in terms of classic a p a judicial review is that this is our final opportunity to educate the agency and to enforce these vital statutes if i might preserve some rebuttal time  asked some questions so let's hear from the other side your and then will i know that most of the members of the audience are anxious to have a recording of this because they're going to go to sleep tonight and they're thinking that perhaps it might help them yes thank you not your argument or discussion  and in front here does the government concede that it's in tension including language about compliance with all federal state and local laws that in order to properly comply necessarily that to we went has to apply for a permit because while there is of course some substantial risk that birds will be taken it's not an absolute and particularly with the wealth of gold and he let's be realistic here i mean even your own study showed that that's going to happen you know that in any any studies at least that i've seen over the years these are huge devices and birds get kill they just get killed and this study that you came up with shows that certain times of day there's a greater likelihood that they'll be killed i know it's been moved off the tops of the mountains and down below to minimize this and so on but under th don't see any de minimus exceptions in the migratory bird act so that's the case then the only out is the permit right if truly when it is through project operations going to kill birds in order to be in compliance with the bird act and the eagle act they must attain a permit or some other authorization from the fish and wildlife service so if they don't get it if they try to proceed and they don't and a bird gets killed then they're in violation of the act right that is correct ok and  what you're saying is if they're dumb enough to do that that's their problem that is correct ok but i also i also hear you saying that you're indifferent to whether they obtain the permit or not that that's not your problem that's their problem even know that for what it's worth i know that and i think everybody does certainly a substantial risk other wind projects have taken birds but the both the agency and industry has learned over the years although when projects took far more birds the newer project and there's not a lot of birds in this area and so there is of course risk and to really win can accept that risk and why don't you require them to get a permit we did if we did require them if they're going to take birds to get a permit why didn't you make it a condition likeable laws and regulations which would include the bird act in eagle act so yeah it's in that general language though not not as my colleague asked their government acknowledges that there is no express condition precedent in  used is the to win must comply with all laws and regulations and all means all that means the bta that means the eagle act now in the record of decision there is language at page three ninety the supplemental excerpts of record that says to lee wind must obtain all necessary permits and approvals so this is addressed in two places now what counsel from plaintiffs is talking about when the when they say that  discussed other statutes but not the what they're talking about is the prop where where the elem said you must obtain all necessary permits but in the right of way itself the i did not detail or say fell out different statutes it just says all laws and regulations which would include the m t a legal act if the elem knew that the right of way was going to disturb endangered species habitat would this language you're to this language to comply with all applicable law would that be good enough i pathetically are going to pull out they're go build on a you know well endangered condo or nesting area we know it's going to affect habitat well what would your general language be good enough yes but if that were the case it would have been some consultation under section seven of the endangered species act here but that because is it not because under the essay there is a requirement for such consultation whereas under the bird act in the eagle act there is no such requirement and there is no express superbus oriel responsibility on the part of the right that's correct because those are the differences there those are you fall back on the general laws requirement but you understand that in order to kill birds if that unfortunate event were to happen a permit is required is they want this court to assume that truly when it's going to violate the law at some point in the future by not obtaining authorization i don't the courts make that assumption that's not our well we don't make that assumption unless we know almost for  fact that it's going to happen right into the wind has worked with the fish and wildlife service throughout this process and we assume to be when we'll continue to work with i think their concern is that as this is structured the birds will be killed then you'll get the permit and other words some birds are going to be killed as this instruction and that that they think the first thing you should do is get if truly were to use the right of way to build these turbines and kill birds that you could pull the authority you granted there you know i know you've got some people on the ground who spoke to people on the ground examine this and i think it was if the one bird was killed just talking about your portion of it of one bird was killed that do you need to confirm what can be done of the more than five the whole thing shuts down that road that's not permit doesn't say how and i don't know word is in the a p a a p a or anything like that but it contemplates the existence of a permit it does it does your honor you say no permit is a vailable what do you mean and let me elaborate on that a little bit so you permit the only one that would be potentially a pleasurable would be the what's called the special purpose permit these are very rarely issued and hard to get we're not aware of a single wind project ever having received such a permit and even if we could it wouldn't apply to this project this is a thirty year project by the expressed terms of the regulations those permits are limited to three years so there's there's no permit available and i would go to elaborate a little bit the government's historical position this and that they use their prosecutorial discretion sort of limit the scope of the bird act and apply it to bad actors and they like to work voluntarily with industry to try to minimize deaths and so where does the three year limitation on such a permit come from first of all you said there wasn't any and then you said you have wildlife service actually began a rulemaking in two thousand and fifteen understanding that there is a lot of uncertainty out there all sorts of things in modern life can kill birds can forseeable it kill birds buildings highways r oil operations in the tenth circuit apollo energy you know those well yeah as foreseeable and in the end the oil in those oil operators were pursued with civil and criminal penalties too they were they were and that's typically how the government is used it's used its enforcement discretion to keep the bird act from being completely unbalanced and limited there's another tool he would  acknowledge why and why not take you position that i'm not sure i agree with you just say you're right yes if you build the turbines yes and you don't get a permit and birds are killed why couldn't these folks get an injunction stop your operation on the basis that you have no permit under the bird act or the eagle act and you're killing birds that could be something that they could look at doing that and i think more and why would you want to take that risk and we don't we don't want that risk because that's what i understand count i mean i understand the the niceties of the whole getting and i get yes when you get put your frankly it puts developers in a tough situation why why would you not want to say look if we want to comply we want to permit a great that's less and that actually ties into the rule making that the fish and wildlife service is doing now for point i want to agencies acting in their regulatory authority be allowed here are not going to be able to not going to be required to get a permit consistent with the government's position since the inception of the bird act in one thousand nine hundred so this is a say we're going to ignore an international treaty that requires a permit oregon who kills well but i don't think any court is held that it requires the government acting in its regulatory authority to get a permit you're there's always the future but i would point i've just spent i would point you to this this court's decisions interpreting the bird act there aren't many but it's clear that it applies to direct activity not to indirect activity but here we have a basically a brave new world that we i think i don't know exactly when these turbines began but certainly not more than twenty five years ago so it's relatively new yes certainly after the advent of the bird act maybe the as well so you've got these huge devices and many people think they're wonderful because it generates as electricity without hydrocarbons or anything like that and it's supposed to help in a lot of ways that this tug of war going back and forth how how can this not take into consideration the impact on birds and not get permits and ball oh and it did taken to let me give a two part answer first the fish and wildlife be permits available perhaps required for a variety of industries including possibly the wind energy industry soon is that permits required we are already required to comply with a click of the law so i would assume that  sent some for our purposes let's just assume that we have your positions we've understood those we get the position of the plaintiffs that under the law you can't kill these birds without a permit they don't want to kill any of them you certainly can't kill them without a permit the government says we're not we're not in the business of doing that that's to ease problem we've complied with the law we've complied with me everything's been disclosed everything's been investigated so not all comes down to it you know right away you can do certain things but there's no express right to kill migratory birds or eagles so you are at risk when we write into an opinion if we say what i just said in more complete language do you agree that in construing the language that you and the b l m have cited about compliance with federal state local law that the court understands and assumes that you and all people understand that part of that requirement under current law is that you got to get a permit you agree with that you know i don't  interpreted the ninth circuit's case law is actually not applying to this sort of unintentional take of birds altogether that said truly i've talked to my client if a permit is available they will get it they unintentional takings don't count and your position is that if it they say that you have to comply with all the laws in the laws so it doesn't count on you well frankly we were in a gray area that we would be taking some risk because we would face we know with a certainty the government doesn't agree with our with how the district courts of interpreted the one circuit case law they think unintentional takings do count so that the permit program that is being written now by fish and wildlife service will help and and help settle this this area so we want cases that agree with that concept rather than unintentional take is don't count oh there are the sicko opinion that we submitted there's actually and several district court opinions including judge sam are tino and i acknowledge that the  just are circuit the district courts have interpreted the ninth circuit in city of sausalito and seattle on this basis for  you you you you you going to take birds you you intend to do it and you apply for permits so that you're taking can be regulated you'd build a turbine sometimes after that kill them and there are those who would say it's unavoidable you have to know that you're going to kill them if you like and that may actually be a good point for me to and it's not just to really that doesn't have a permit available if appellants get the relief they're seeking tomorrow when the energy on federal lands comes to a stop renewable energy on federal lands comes to a stop but it's not just renewal energy and when  out in part so that there could be a permit for the take of micro tory burch that results from an unintended consequence that they anticipate will occur that's forseeable there is a permit right now it's correct that there's a new permitting process that's being put out which will probably be a place in the near future but this exist today and they could apply for it today if i could just make two more quick point your honor this will so this will not stop wind power they can apply for it and in fact there hasn't been a permit granted specifically twenty agency in exactly the context the council said doesn't exist if you look at seventy seven federal register five zero one five three that's a permit issued a special purpose permit in two thousand and twelve to the national marine fisheries service for regulating a long line fishing which like wind power predictably and inexorably results in some deaths of migratory birds even if it's not the purpose of the activity so we have an example of it being granted when power projects can apply for it at any time you know finally in terms of the seattle without any doubt the soonest as sure as the sun will come up tomorrow another project in california kill sixty eight thousand birds a year you know what if we're not going to is that the case on this basis but you will that just as special use permits are provided in the law for this exact situation as has been cited fifty c f r section twenty one twenty seven so  eight four two eight four three that's where the fish and wildlife service confirmed that you'll take permits are available to federal governments as well as others specifically for wind farm