morning good morning your honor is may please the court my name is famed somerville for the petitioner hoopa valley tribe would also like to briefly knowledge the presence of the hoover valley title chairman the members of the tribal council who traveled here from california to attend the hearing today made a legal determination they could not find a waiver of state section for one certification authority unless one for a year had passed from the date of a certification application this was an erroneous legal interpretation of clean water act that is not entitled to deference in this court section four one provides that state certification authority shall be waived if a state refuses or fails to act within a reasonable period of time which will not exceed one year so while the act sets an outer maximum limit of one year it does not preclude the certification of the licensing the federal licensing agency for making a finding of waiver  prior to the expiration of one year based on this eroni us legal interpretation of the clean water act for it ended this in its analysis at that stage because in this case one year had not passed from the date of any given certification application it found that the letter of the statute the actual language of the clean water act precluded it from finding waiver in this case despite its significant concerns that it was being deprived of its federal scene jurisdiction and despite that this the conduct of the states in the licensee violated the spirit of the clean water act but it was its erroneous legal interpretation that made it stop its analysis without actually evaluating whether or submit a a one page letter each year that simultaneously purported to withdraw and resubmit the applications but the focus here if in fact were new to cool your i'm not even sure there was an actual application it was nothing more than a letter on a one page letter the that's if we withdraw and resubmit we please deem it withdrawn and resubmitted you i'm i'm interested in your invocation of and what is there that violates the language of the text in this in this process it was interpretation of the letter of the of the act if you look in the order on rehearing in paragraph twenty to twenty three on the order  rehearing it was clear that they felt of the language of the act precluded them from making a finding of waiver unless one year had passed that's not what the what the language of the clean water act actually says the language of the clean water says that waiver shall be found if there's a failure or refusal to act within a reasonable period of time which a lot of seed one year so r r r r going is not based on the spirit of the clean water act or arguments based on the language of the act and the fact that misinterpreted your argument i assure you trying to make a mark a specific argument but i'm having trouble seeing a more narrow argument that doesn't depend on a determination that it violates the federal power act to condone the withdrawing we submit are you making you are making the argument  violates the federal power act for first to fail to find that the states have waived after therefore a one certification application has been pending for a year and that that can't be extended through this ruse of withdrawing we smith that is part of your argument or that is not what it was part of the there was the third issue in our in our case of whether ferg had essentially abdicated its licensing authority in this case under the federal power act by not reasserting itself into the case which could have been done either through a finding of waiver under section four one or by dismissing the certification application for lack of timely diligent processing but our or our clean water act argument is independent of the federal power act what we're saying is that misinterpreted the clean water act by finding that it could  not make a declaration a waiver unless one year passed that to end it by its own regulations it defines a reasonable period of time as being one year doesn't first regulations track the clean water act in the sense that a waiver will be deemed to have been found if one year passes and that's not controversial and that's that's consistent with this data that one just does that for my own regulations defines a reasonable period of time to i don't believe i don't think you challenge that happy the first regulations do not specifically say that in all cases a reasonable period of time will be one year what it says is that waiver will be found will be deemed to have been found if one year  going on regulations to find a recent period time has been one year well if they did that's not what they were relying on in the order on rehearing they did they didn't rely on the regulation i don't read the regulation to preclude them from making a finding that the waiver occurred within a reasonable period of time i to more talking you i had so i'm not sure why we're struggling over whether it's less than a year or a year this if it has been pending many many years and so the  like its hands were tied but even if you read the regulation which says in the affirmative that it will be deemed to have waived if they haven't denied by one year but it doesn't say that they can't do less i understand that that's your position but even just taking it to be well been through teen time the time when first is comfortable making the determination is after year because after all everybody wants to know how much time they have to work with an affair comes in some cases after six months and in other cases after three in other cases after nine people don't know how much time they have to work with but why are we even talking about it for authority to intervene within the year because it hasn't intervened after a year or even after two years or ten years or so so isn't the question whether further should have asserted some supervision over this process because the states had not acted a reasonable period of time has passed within the one year from the certification application for example of this with how you would save it for error before we ever get to burke final defeat or where you live in relying upon an interpretation of the act which if they can't do that they're thirty and if they could not look at country involving the period here because  i don't believe that the regulation precludes ferk from examining conduct within the one year period and didn't apply any sort of general policy or regulation in this case that they expressed significant concern in their order on interpreted as a bright line rule to say that no matter what we deem one year to be reasonable in all contexts it would pose a very significant problem to both the clean water act and the federal power act because for example what a state just hypothetically sent a letter in to for two months after an application and said we refuse to process this application we're not going to deny it we're not going to issue it but we're just letting you know that we refuse to process this agreement to do exactly what you did it was slightly less explicit than i describe it effectively that's exactly right how do we understand the why would it be better from a public really approve the transfer and surrender applications but they are there now the way that the way the process is working now is they are back where they should be as the federalizing agency overseen and making decisions as to whether transfer and surrender will occur put into bands and there's pending application to have the license for half the project transferred over to the renewal corp and if on the first for gore to say the thing that's in a band which gore to say up states are out of the picture they waved let's go first speed ahead with relicensing then wouldn't that throw up the gameboard on the other strategy that the parties have been pursuing which is a division of the license into two and an effort to transfer the decommissioning project to there were no operation if this court were to vacate first orders and send it back with a finding that has authority to find waiver within one year and perhaps the record clearly shows that waiver did occur in this case and the states are out of the picture further would have authority to issue a new license for the project with no obligation to do further could still proceed ahead on its transfer and surrender process as it is now which petitioner actually is in support of but but that's a controversial process and it's a unique and a process that has occurred before there's no guarantee the first will approve that the benefit of of having the states where their certification authority is that if he decides that it cannot approve the transfer in surrender in the future then at that time if the states have waived for can then proceed in the public interest to relicense a project without having to go back to the states and potentially be subject to the same arrangement that they've been subject to for the past ten years where the where the proceeding drags on because of this withdrawal resubmit process so that's when the primary reasons why this case is still very relevant and would not interfere with the ongoing transfer and surrender proceedings on that question the legal question of whether of how to read the section for a one waiver circumstance we're told that that a majority of pending relicensing are take much longer than a year is there authority for a state to apply to for for longer in the first processes set up to accommodate just that the under the tao the integrated licensing process at first which is the default licensing process studies on water quality and other issues begin years in advance of even a license application being submitted in this case in this case water quality studies began six years before the first certification application was even submitted to the states so one there's a there's a built in process way in advance of the one year certification proceeding that allows for substantial work to be done second of all it if if there is an actual need for more time there is a process and it's a process that was actually implemented under the amended case i say which is benefit of that is that regains its place at the table as the licensing authority there deciding whether or not to grant in abeyance if it's appropriate and it also creates an a in effect of the appeal will decision that the public can participate in instead of having it be just soley with this agreement between the state and the licensee that neither for grow the public and participate in although they put it everyone has to participate in the end and as you said when that's presented to her for final approval you know there's been a with the prior process which we challenge is that the public was not involved was not involved in the public was on involve the states and the licensee could have continued this process of withdrawing resubmit for ever that i understand but once let's say instead they had sought a bands from for and for could put in advance and said work it out i will give you a little while and they had worked out the settlement even under the first settlement at the end of the day when they were happy with what it was they were planning to go forward with they would have had to come to first to get approval right at the end of the day and i get it you're saying that's not good enough because that was all done in dark rooms we're seeing more than that we're seeing under the arrangement between the states and the licensee in this case  and the public could have been cut out of the process forever for it would have never regained its license you know at the ready if it interprets the clean water act that it can't do what they could have done ever ever assuming one step less macchiavelli an activity on their part that they actually wanted to do something right the the citizens of the state are saying you need to move on that and the state is participating in the settlement process that actually wants to conclude if that settlement process did conclude they couldn't go out and conditions they would because they would have never had their authority to issue a new license they can't use your new us until sort of occasion is issued organize but if you're still in this waiver world where the one you're just keeps getting participating in this if they didn't need more time to actually come up with the with the clean water conditions what what is it what it why is it in their interest to have this up in the air and have their own people in their own environment that i understand that and isn't a big part of what's going on here a question of who's going to pay what i mean isn't that a subtext of everything yes it's one of the subjects well carol banta for the commission i want to begin with why the commission interprets the act the maximum one year to be clear and we do have a regulation but the explanation is in the rule makings behind that regulation there was a rule making in one thousand nine hundred seven and i don't know if we referenced it in this case but it is referenced in i believe central vermont or no constitution pipeline which we mentioned in our supplemental brief and it also it's also cited in the ninth circuit case in one thousand nine hundred two in the state of california exparel california water resources control  board it was called order for sixty four in the commission said we interpret this the clean water act at the maximum one year and not shorter because we want to provide early certainty that everyone knows that it's a year and the commission has later expounded on that the letter of the law these are one less than one year periods but the commission itself has recognized the tension here oh yeah the commission has said we're not happy about this the commission has numerous times said we disfavor the withdraw now the second circuit has actually said that that's fine and this court case in which it wasn't really squarely at issue i think it said it in the it was dictum in the in one case and then it cited it more in another case that said you could actually didn't cited one of the other parties did that the e p a has a regulation that says the certifying agency gets to decide what the reasonable period is now the commission has said we don't want to go with anything less than a year because we don't want to create uncertainty and in the constitution order from twenty eighteen that we cited in our supplemental brief the commission said if we start going case by case to say well in this case something less than a year is reasonable we create the exact kind of  the court in cases like alcoa and north carolina has held us to but the commission said in its rehearing order if the court wants to tell us were wrong i mean if the court wants to give for more authority we generally don't say no to that although i would imagine that what defining what is reasonable case by case would create exactly the kind of uncertainty litigation that the commission was trying to prevent spanta if we were to accept your view about the importance of working in the one year unit for purposes of just clarity and notice an expectation that doesn't really answer why why first would take the position that the withdraw and resubmit is required by the statue i mean as i read it a state is deemed to formality of walking out the door and walking  i'm just a little confused why everyone thinks that that language so clearly allows that it really doesn't seem that clear at least as a lawyer i could argue to the contrary and you have not so right  and in the past for instance in the central vermont case parties were arguing to the commission that that requiring you to actually take the record because there they had agreement to to withdraw a resubmit they missed one and when they missed one and went over the year the commission said aha now you wait and the state there said well this is overly formulistic and ministerial and a question such as what the statute says this really is a case where the we see a request and such request and if a request is withdrawn before the one year passes then such request is no longer pending and there is nothing to be acted on a winner no lay person reads this or a lawyer and the overarching impression you get is that the states are in the driver c they get a year to act and if they don't act things move on and only that that the basic purpose and then you read this language about a request as it's a request is a different quest i mean did help me out here because i seem to be taking the the a view that you're not and i'm trying to understand why and i understand your view and it really is the agency trying not to be told by a court that we're a request and such request have yet have meaning but i would say the the certainly if an applicant makes a request in the committee and the state what refusing to act on a request that remain when they have contracted not to act then to refute what the commission looking at the statute as long as there was not a keep well they also agreed to keep what what some people have called the formulistic and ministerial act of of restarting the period they did agreed that let me ask you if if one were to read the statute as giving the states only the year and not and to disallow the the withdrawn resubmit of the exact same application what would happen to the states water quality if they could still issue recommended water quality sort of occasions with a be taken into account in the way that downstream states informations take into account or would they just be i believe so i believe it would be like the i think it was the airport communities coalition case where if i'm remembering the right one where a state had acted but then they tried to add conditions after the fact in the army corps of engineers took them on a discretionary basis rather than man dettori but and  point again i find myself in the position of somehow defending something the commission is that we don't like we just think it is in under the letter of the law but a state can block a licensing entirely by denying it and what the commission said and i think maybe the commission would prefer over this withdrawing refiling if you're not done within the year you deny without prejudice because then the licensing doesn't move forward until the state either waves or grants i deny without prejudice is subject to appeal in state court i think i don't know for sure i don't i assume i don't know if the without prejudice versus with prejudice makes any difference in that i don't know that in terms of appeal ability or not with i don't i don't know in june i think when we filed the supplemental briefs the motion was pending maybe but it was and the is going to do that is where oh i don't know for sure but i do have the order in which we did it so it'll just be cited in there so yeah so theoretically if i mean it sounds like given the bulk of the cases that have been pending from where certifications are being awaited for more than one year for one certifications many many many cases the states take more than a year can i interject a factual note on that yes i'd like to update because the briefs are three years old because the commission actually maintains a list on its website i'd be happy to to give you the information or submit it in a letter if you want the commission actually keeps a list open to the public on  website of the current certifications hydro certifications that are awaiting either clean water act or endangered species act in many cases it's both on the current list of the ones that are either clean water act alone or both there are seventeen i think that's down from the twenty nine that was in the the the briefs three years ago or in the orders four years ago and of the top four that were mentioned in a footnote i think fifteen in the rehearing order two of those have are no longer on the list one has been rel one is moving forward i think it got either got or waived its certification that the state certification is moving forward so it's not the same ones now i just want to bring that update so yes the commission does is concerned that there's a lot of delay and it keeps track of this list of the projects and the states and the federal resources are voces that are holding things up but i did want to give that update it's a keeps track but under first legal view it has no power to pursue them along as long as they keep initiating a new request before that year runs but if you look at some former vermont i think it was five days after the year and the commission said that's waiver that's but yeah but that the commission does think that the letter of the law ties its hands on that again given the state's power to block licensing entirely under the clean water act it does give states a great deal of power and what's the situation with the upper part of this project  understand that the whole relicensing for the whole project is in abeyance and that there is pending a question of whether the decommissioning can be transferred for the lower part is there any license pending for the second half of the original project that was broken and i believe that would remained under the original license the one that the commission granted if we want to call it so it was never the terms that relate to it i think it  was i believe it would be subject to relicense and i do want to add another thing that happened that i think is referenced in the supplemental briefs that may have happened shortly after the commission granted a motion to stay the effect of that march twenty eight hundred order so that corp can keep operating the one license and not in other words the split is stayed unless and until there's a transfer to the renewal corp so right now it continues to be one license but i  understanding i think is that pacific corp would continue to have a license as to it would be called the klamath project as opposed to the the new lower klamath project it's my understanding and just again to understand practically what is going on on the ground is this all about who pays and how do we even begin to understand the implications i don't know if the commission is in a position to know that i do know that the reason the commission didn't grant the transfer right away and is collecting more information is because the commission has to be comfortable that the renewal corp is financially and technically etc capable of taking the transferred license so the commission takes that responsibility very seriously so as far as who pays in that regard anything else about the states i mean there are things in the record about bond approvals and but but none of that really involved so i don't know that i can speak to it apart from putting the whole case in a benz is there a process for a state to request from for more time to process a for a one certification no i don't think so thank you very much related to when the when your clock would commence as opposed to when it would and they were dealing with when they would deem an application submitted so that was what they're talking about with the reliable so everyone would know when the one your clock started and we could address the question we're dealing with is does for a calf to say have authority to say when it ends if it's less than one year also there's not been a case out there that's address a specific question there's no specific circuit court authority on the arguments that we're presenting today really one way or the other there's been references to withdraw and submitted dicked but there's been no approval one where the other or disapproval in a circuit court and i would like to com proceedings and the relation seems drag on i mean that the licensee gets to operate on the terms and conditions plus maybe some others that agrees to for the entire time that the realest relicensing drags on i think there was evidence cited in the record in this case but that was worth twenty seven million dollars a year to the licensee in this case so the licensees well well it's the states that have the critical of the wording there is a significant push by the licensees to make these proceedings drag out and i think it's important on the other hand they have a very mixed interest in the validity or not i'll withdraw and resubmit because here they get automatic license share under their antique license which is in their favor but in a case in which they're trying to get a new project license to support the withdraw don't resubmit notion they don't if they don't have a license and they want processing to go forward the states can hold them up indefinitely by the same