i'll start with count age and then move to count seven thirteen seventeen and eighteen johnny was dismissed as a clear air of law by the district court this was the bad faith performance of an environmental impact statement by defend eight why wasn't judge parker right when she said you waived any argument with respect to the timeliness of a portion of that count by waiting the eighteen months to file your motion to reconsider i have been trying to figure out why you did not seek and e d s reconsideration if you believe  had heard by dismissing the entire town in its entirety i understand your question your honor yeah i think it would have been the better practice to bring it to the judge's attention immediately as it happened because there are other events happening in the case including this whistleblower disclosure form and are employed to to plaintiff counsel that would be me and the luminous administrator record that we were trying to sort through to see if the whistle or information had been included in it to see if we actually needed to supplement the record i actually had other priorities now here i think it's a better argument for defendants to say that the court was not obligated to grant a motion to reconsider based on the point you are raises but it doesn't eliminate on that dismissal and i believe that decision by the dish or court to dismiss discount which was clearly an error because it wasn't asked to be dismissed in its entirety is something that your honors have an obligation to deal with that you don't think you have an obligation to not wait to say well i think i should have done it sooner your honor but i mean there are some extenuating circumstances here and i don't want to win too much time on those but we had an unexpected fraud that was happening that we caught we had a luminous record that was so demand it took us months to go through i thought i was going to have four maybe three other attorneys help me on the case that didn't happen  reasons i want more u s so i did the best i could i was doing this case essentially pro bono on a statutory contingency and yes would have been better practice i agree with you were we obligated to do it under the law the ent so and in regards to count eight the district court acknowledged that have this was on the summary judgment decision later in the case the district court acknowledged that it was a close question where the defendants had prepared the question but if the whistleblower evidence that i brought forward in my declaration had been allowed to be considered by the court it is appellate view that we would have made the case on that close question we were never given the opportunity to do that and we believe you so that close question on the bad great preparation of the i r s for section four can be decided by the court considering that was a lower evidence that has so far been excluded would your answers be pretty much the same if i asked you they were right when the summary judgment motions were brief but he remained silent and the problem is this is syphilitic gage and so there really is no plain error and i'm wondering i know i've been wondering if you why i should say you didn't commit wafer by remaining silent as judge parker   that jurisdiction can't be waived they are talking about a lack of jurisdiction here you are saying there was jurisdiction but the point again is that that was an argument that should have been made it seems to me in response to the defendant's summary judgment motions rather than waiting until people understand it on his point but again there's a distinction between what's better practice and watch the law and what's a waiver the jurisdictional obligation on courts is not just limited to one side of the coin there is an obligation on the courts to look at the absence of jurisdiction and also the presence of jurisdiction just like the court can't accept a case for which it has no power or authority to hear it also has an obligation to accept the case when jurisdiction is present now under federal statute twenty eight u s c sixteen fifty three i believe  so i agree with your honor that it would have been better practice and if you are wants an explanation why i didn't do it i can give want at the time that this motion to dismiss a motion for summary judgment was filed after i finished all the other arguments i got to this argument and i asked myself what are they talking about these cows are trying to dismiss as unripe they know they were filed after the r and d but now they're pretending they were filed on some legal technicality that to my knowledge didn't exist reaching their file before they are re let's say of that dadda i'm not sure what the actual fraud is that's a key question not be the fraud comes in play not at the initial stage of the decision to not use the two thousand data which we've argued is in bad faith with the record reference that we've given but at a later stage when after we had been given this whistleblower disclosure we asked for witnesses on the stand to put this whistleblower on the stand among others and we were denied but the court in denying our subpoenas gave us something the court gave us limited paper discovery for documents and we asked the court for the documents on this  concealment of the two thousand nine hundred area and this other issue of this appendix and in which we're not talking about a moment now because we were allowed to after that in that limited discovery the defendants were forced to give those documents to us and they did ok but those doctors did not include the key disclosure by the whistleblower which was that federal highway official larry heil directed the indot the state department transportation to withhold that two thousand on data not because it needed quality assurance which is the official story you're still hearing from the defendants or even in the brief to this court but because they wanted that data to be held until the r o d for section four right clicking on was issued in other words they want to make sure that this project got a prude so before they had to address this issue now if you look at the da consumer disclosed that the defense admitted and there's no dispute at the moment that those documents show they ran this new data through their computer models they showed noncompliance with the clean air act so they knew what was going to be the consequence request counsel for the defendants asked the whistleblower basically to give his documents over i know this because it was a lawyer told me later and that's in my declaration and they asked him is there any smoking gun evidence which for just scot free and secondly it seems that the problem with the two thousand and nine vehicle fleet data was already had already been disclosed in the administrative record so whatever attempts there that's now here's a either because that's an admission under age or one you don't have to be a high level manager to be an employee acting within the scope of your employment and making a statement that regard because what happened here now my of a david might normally be hearsay but on a motion for summary judgment  laugh so i would respectfully disagree with you on one on the hearsay but but when you're talking about fraud in the cornell finish my time it will be up from my primary argument but when you're talking about fraud in the court here's a really shouldn't be the consideration the court has an elements of county to challenge section four because and we submit that it was not an abuse of discretion for the district court to find that mr furlow had waived those claims it wasn't the district court's job to root through his complaint and find the handful paragraphs in count eight that challenged section four it was his job and he didn't do it at the time he had an obligation to defend his claims or at least file a timely motion f reconsideration now he says that as a matter of law he's not barred from raising this issue on appeal and i think that's technically correct but what he has not succeeded in doing is showing that the court did just record abused its discretion by concluding that he'd wa even if this was a clear or whole district court was well within its discretion to conclude that he had waive the claims but not bring them up in a timely way and this issue is important owners because this is part and parcel of the way that has conducted itself throughout this case it brought eighteen claims challenging i sixty nine but it hasn't pursued those claims diligently in this case in august of two thousand and eleven and it filed a motion you didn't file its motion for preliminary injunction until four months later it didn't file its brief supporting that motion for preliminary injunction until three weeks after that the court set a hearing for that motion on february twelfth two thousand and three fourteen two thousand and twelve date seven months later the district court dismissed that provisional p i motion because card simply failed to pursue it if karr had pursued its original preliminary injunction motion its challenge to section four could have reached this court three certain paragraphs of county and the district court to dismiss all of county so was that decision by this record to dismiss all of it was that here up probably i mean we granted more than relief than we had i'm saying it's harmless error and i'm saying it was not an abuse of discretion for the district court to later conclude that card waive those claims by not raising that issue during the next following eighteen months car could move for reconsideration immediately could have raised  summary judgment papers instead it waited until after the entire case was decided to raise these issues and that's how carr has conduct the entire case and all that matters now because what cars asking this court to do is to resurrect claims that it abandoned in the district court now karr was free to choose for example arguing half of its eighteen claims on summary judgment we all make decisions in litigation we advance some claims we abandon others are made its decisions but it has to live with those decisions it doesn't is set out in the refining report on that that was prepared comma quality assurance and you can find that counsel for in doubt attached it in a supplemental appendix to inducts brief and if you look at the supplemental appendix on pages fifty five through fifty eight you'll find the story of why it took as long as it did to do quality assurance on the two thousand data the bottom line is the data was delivered in june of two thousand and ten the interagency committee that gets to decide what data to use which was not just federal highways indiana department of transportation but also included the united states environmental protection agency and indiana's department of environmental management spent some time deciding whether they should use the old data or the new data they were concerned that the new data looked off that it showed an older vehicle fleet than you would have expected so they wanted the quality sure that data they knew that the law didn't require them to use the two thousand and nine data because the law says you use the data that's in place when you start conforming to determination and they knew th guidance said you shouldn't use data until it's quality assured so they asked indiana to undertake the process of quote insuring this data and as this report explains india that it encountered a series of funding obstacles and it took them till december of two thousand and ten to get the record decision was signed for section four so they didn't need to delay the quality assurance of the two thousand and nine fleet data because they could lawfully and rationally rely on the two thousand and four fleet data but in addition if you look at the e mails in the record these are from larry heil and larry hols not a manager director of the federal highway administration it wasn't his decision on what day to use as i said it wasn't even the federal highways administration's decision it was the decision of an interagency committee that included e p a ed but if you look at the e mails in the record you'll see that far from wanting to delay the quality assurance of the two thousand and nine fleet data his approach this was we should get this done as soon as possible we should get this done because we need a contractor to get this done and after a while after you comply you go and what's called maintenance so you are complying but we want to make sure there's no backsliding and now green county has moved from maintenance into full attainment which means that the air quality their spine this analysis would not be required if the agencies were doing this today anyway my point was this e mail if you look at it it's a s p a r nine sixty two larry heil who is according to the plaintiffs at the center of this fraud says the bottom line is that it's critical that fund this review now what he says is we need so we need to get this consultant on now in all caps and he says that the longer in doubt waits before getting a resource on board that can make this happen will be that much more time that all of our air quality areas remain in a freeze if this issue were remained to the agencies now they would have to make a further conforming terminations his green county is now in compliance with the clean air act and because return your honor to one other question you asked which was the suggestion that the overall cleaner at processing green county was influenced by this two thousand and three data issue and i don't see that there's any evidence that's true there that this is the conformity determination is done by this committee as part of the i sixty nine project green county status in the clean air act is a much larger issue that involves the indiana department environmental management e p a e p a rescinded the eight hour ozone standard the green coming to violet in the past and then green county came into eliminated consideration for that reason that's all they had to do they don't have to start the process over again because dr months and sent in his proposals they're supposed to respond to public comments in the final environmental impacts that and that's what they did now as a far as the so called appendix end that analysis they started to draft it up in a separate appendix and then later incorporated it into the response to comments section of the final environmental impact statement instead of the public didn't lose anything the agencies put their proposal  received a substantive comment they analyze it and responded to it and reject it for reasons that are rational engaged in a tiered analysis for this highway and interior wanted stablished a corridor and the tier one record of decision said that you have to stay within the quarter unless you need to go outside of the quarter to avoid significant impacts and in the in the section four record of decision end up i'm sorry federal highways interpreted what that language meant in the section in the in the year one rod and they and they said unless you've uncovered substantial impacts in an in an at a level that was not anticipated you have to stay in the corridor so to the extent that there were that there were these two alternatives that took five or seven miles out of the twenty seven mile length of the of of the entire section to go outside the quarter the an analysis of the impacts that were to be avoided and these these alternatives were put forward as avoiding karst impacts federal highways took a look at what power whether or not first where the where the level of karst impacts greater than was anticipated and they said no and then they looked and said does this alternative or these proposed alternatives a go outside the court or help in  material way and the determination that they made on that was no in fact they don't we don't meet our own standard for going outside the corridor or these two but these two alternatives don't meet that standard so we're going to we're going to not look any further at those alternatives there was a white paper that was done that looked it up a broader range of impacts that would be caused by these other two alternatives that paper is part of the record it was it was given to plaintiffs as in a public information request but it's not relevant really to the determination that federal highways made in interpret ing its own share one record of decision in the standard that they set up to look at alternatives outside of the car are you saying that well the  is reliant on that so called white paper analyzing the month route they were required to provide that paper to the public are you saying they were information is put out as part of the federal it as part of the environmental impact statement and appendices need but does not require the federal agency to put every piece of information that it has into the into an appendix that accompanies the fed of the environmental impact statement if that were the case then the entire administrative record which is hundreds of thousands of pages in this case would be required to be somewhere as an appendix distributed to the public as part of the environmental impact statement as the public just have to go on trusts it goes at the you know you're doing w extent yes your honor that that's part of that's the nature of of administrative law and practice as you go forward with these types of projects the important thing with that white paper is that the other impacts that were analyzed in that white paper aren't relevant to the decision made by federal highways to do whether or not they're going to look at an alternative outside of the quarter that had been established in cheerwine but so say you have how can they the the agency is imbued with this with a level of discretion to determine what what their what their own language interior what meant interior one they established a standard for looking at alternatives outside the corridor that had been sat in the in the chair one rot and that standard looked required them to allow them to decide to go outside the court or if they needed to avoid significant impacts in section four at the chair to process they looked at these proposed alternatives and they said here our standard requires allows us but doesn't require them but it allows them to look at alternatives outside the established year one quarter under certain conditions and what they did was they said we've looked at this these alternatives we know what we were experience in the within the tear one quarter we have not encountered impacts that were unexpected or at a level that was unexpected we have no reason ourselves to go outside the court or let's look and see if these two proposed alternatives that came up in response as as a comment on the draft yes do they really help avoid impacts that were unexpected first there are no unexpected impacts within the quarter second the level of impacts in these two proposed alternatives where it was not so significantly or materially different that would allow federal highways to choose to go outside the quarter and going outside the quarter would be a significant  change in the direction of the project where people's expectations had been centered upon what this quarter with the quarter established into year one which was in two thousand and four brought to the public and what the public expected i see my time has expired but unless council how much is this been completed how much of this i sixty nine has been the road is right at this point in time ninety percent complete it should be open to traffic by the end of the year right sonali the area we're talking about is one has to be adjusted if we would wind up building another road if those if those alternatives were found to be acceptable but the agency i would submit has not abused its discretion in deciding to stay within the established year one quarter thank which is a procedural statute nepa is about the process of making a decision not about the outcome of the decision so in terms of this month's an alternative assessment whether or not the agency might have eventually been justified in rejecting they were not justified in keeping their analysis secret and that's the need to point to the independent said that they have some discretion in terms of what documents to release and not to release in regard to this thirty page white paper but the defendant's own the federal regulation that required underlying documents to be released to the public and underlying document would include any analysis that they relied on for example to respond to public comments which is what they did in this case they said conspiracy and i guess most what i can say it is just doesn't smell like a fraud to me fraud usually involves can see only and then attempts to hide and all we're hearing even those defense counsel got up and read some of the e mails and it was all out in the open well so what i mean help me out tell me what admissible evidence you have meaningful and miscible evidence you have that would show there was some type of fraud or conspiracy  first of all you are as i noted before the court has an obligation to create a record on a floor on the court allegation when it's made a good faith by counsel in this case my affidavit declaration was admissible as i've explained i had this in was telling me you know i risked his own job and livelihood and his family's support he was saying look i was told and i was told you not release this data until the our lady comes out and when defendant's lawyers came to me and they asked me do you have any smoking gun evidence i told them yes and i told them that this instruction had been given to conceal withhold this data and to actually are ready it's that where the fraud occurs because it's officers of the court deciding to conceal material facts and continuing to misrepresent to the court a false story that they know to be false this whistleblower told different as counsel what the whistleblower told me so that's where the problem the court comes an is officers of the court concealing material facts and