years we're here today because first has a license to the same project under the same terms so that the same situation will prevail for the next thirty years we have many issues in this case and i forgot to say i want to re to this court on these issues we have there are basically two parts to the endangered species act issue the first is whether as an it national matter first failed to ensure that the species be listed species in the area would not be jeopardized by the project and i'm not question the briefing is quite clear petitioners provided reliable evidence that the southwestern willow flycatcher had been observed in the bypass reach and all parties agree that the southwestern will flycatcher has is in the project area in general nonetheless for needed determination that the project was not likely to adversely affect the southwestern will of like catchment be specific when you say provided evidence it seems to have come in piecemeal bit by bit what was the first indication that the fly catcher was in the affected area well in the affected area all parties agree that it was first folks said that that their determination was based on the fact that the play catcher had not been in the bypass reach then petition or submitted evidence by gerald braden who is a surveyor for the forest service and is well this like that and then what happened next and then there was another some little saying that he he confirmed that it was during those days of our submission by him in a declaration for i believe it was not at that time no simply a statement that he had authorized you to represent and at that time there wasn't a declaration to fill in that blank i believe that is correct your honor however the question of the  so why why you know i mean i'm not criticizing but why wasn't a declaration from him immediately forthcoming i was not working on the case that i don't really care i was see this is what happens you know i do understand that it is frustrating i believe that it was hard to get a hold of people and there was a problem getting it in the media manner ensure that the project does not affect adversely affect listed species including jeopardizing the species known to exist in the area the southwestern will of like archer we believe it was first also fergus duty to necessary under the endangered species that in order to open a consultation nonetheless i want to move on to the second issue which is the critical habitat designation critical habitat w designated for the southwestern miller flycatcher in the creek including in a bypass reach in october of two thousand and five i believe it was october nineteenth of the process it was long into the process but the process was indeed even seven months later in may two thousand and six for issued another order correcting another issue in the in the license because the amount of forest service land that had been listed was incorrect and accepting the final now on the berm issue so during this entire time the license was still being reviewed by for first was still taking action on the license and for no longer acting affirmatively with respect to the license and that the license said the issue decades before that is not the case here in this case once critical habitat was designated in little creek specifically in the adversely modified by these actions conditions were not sufficient to protect adequately protect the reservation there's burkas reads many issues here but i would like to move directly to the substance of it  service provided conditions that spills to provide any surface flow in this creek prepares to fail to provide any restoration for the creek although it is clear that the forest plan itself stresses that right period areas should be managed for many other uses besides power in addition to power such as wildlife water recharge just i'm not a scientist but i read through the hole and it sounds like the flow that's been approved is pretty minimal and your position is it's not even close to enough to support the interest that you're interested in and you want to six to seven c f s for second flow that's correct rather than the leakage flow but i've read all of this information i don't see how that helps you one that doesn't get where you want to go either with respect to birds or fish respectfully we believe that the that the record does show that it does improve the condition of the rule but so marginally it won't make a difference and that's sort of generally what the other side seems to have said ok you get a couple more c f s in there but that's not going to help three but not enough to make a difference you know the difference between what's going on for one hundred years you know and six and seven compared to twenty or twenty for their judgment is based on all the evidence submitted that that simply doesn't get you anywhere it's so marginal that it's not worth the decrease in the power output of this plant i understand that that is folks position and i understand what you're asking however one of the issues in this case is that petition needed evidence that that is not correct that it would materially improve the condition of the bypass reach but i don't know if you look through it they don't have to buy into the whole and i agree with you that when the first time around it just it might appear to somebody that they just bought and sees evidence and totally ignored years but in the order of the nine rehearing i mean they really get into the details and large measure well informed maybe not sufficient as far as you're concerned but they say here's why we don't buy the arguments from the other side in fact they do not really get into the evidence to the extent that we feel is necessary because one thing they never do with the competing scientific evidence is they never look at the reliability of the experts they never look at the methodology of their studies however you know the commission staff didn't do that well it's certainly not evident anywhere in this record is not evident in the order on rehearing and it is not this record shows they did not grapple with this scientific evidence there is clearly a disputed scientific issue several disputed scientific issues and they did not grapple with it on the basis of science they simply chose one over the other and that is what we say undermines their plane that they had substantial evidence for their decisions but you think six to seven c f s this is going to support some kind of a trap population is in very bad shape and actually recovery habitat one of the reasons for listing this area as critical habitat is to provide recovery for the species in fact different this court specifically that the that the action its licensing does not destroy or adversely modify critical habitat and through consultation it should ensure that it should have open consultation with the fish and wildlife service on that basis indeed one of the fish and wildlife service letter specifically stated that the reason they were recommending the same six to seven c f s flow that petitioners are recommending is for recovery of the species in the area by leading the southwestern left by letter of august twenty seventh two thousand and two after the s f w s concurred with staff assessment state in the future direct and indirect effects of project operation over the license period are not likely to adversely affect any listed species as none are known to occur within the bypassed reach here's some critical language however f w has stated that if any listed plant or animal species were found in the bypassed reach during the license period consultations should be initiated to ensure that project operation is not jeopardize the continued existence of the species are we that the suggest that if this all of a sudden the licenses issued in the will of the flycatcher pops up that you've got to but it has to do with the actual project works in that there was a long area of rubble and dirt that is used to direct the flow out of the natural stream bed and into the project works and in the original was described inaccurately and in fact it was not never said in the original license that the licensee also maintains the berm by work that it does in the stream that to rebuild it when when it is destroyed or partially destroyed by floods and so those issues were never in the lead in the environmental review were never presented to the state water board and we believe that that is incorrect under both of federal power act analysis as well as a simple addressed it for the first time in their hearing order to the extent that the petitioners had any issue with what the commission said in the rehearing order they were obligated to seek rehearing of that determination you can seek rehearing from a rehearing order when the commission makes a new determination with a new rationale that is a prerequisite for appeal that is jurisdictional it is not waiver is not a dime's gene it is f p a section three thirteen jurisdictionally precluded from being raised on appeal so that is not properly species was listed that did not trigger mandatory formal consultation under some need to now in the ongoing operation of these kinds of projects there may be informal consultation i think as we discussed in the argument in that case this is the commission doesn't issue the license and just walk away there's an ongoing process with the licensee and the various resources agencies and there are often will be fly catcher is known to occur and everyone agrees in other parts of the same project area and the reason the fish and wildlife service concluded that the license was not the agency action of issuing the license was not likely to decommissioning of the mill to dam would actually benefit that species and i don't think there's been any dispute as to that so some parts of the project would actually benefit the species and because no fly catchers were known to occur within the mill three b reached that part of the project was now likely to adversely effect i don't think we're arguing that it would actually be that official the problem that i have is that it appears that there's a there's an obligation affirmative to check out these things and in the usa make sure when i do any unnecessary damage and it looks like from reading all the stuff that your side was just dragging his feet the other side would come in and say hey time out we've got a guy expert who's seeing the bird here there and everywhere and you just keep sort of coming up with not you personally but well real reasons why we're not going to pay any attention to that rather than saying oh but then as the birds there we've got to check it out not the commission it was official wildlife service i guess instead of trying to identify what species what was the species are potentially affected we would get a list of all listed species from fish and wildlife and try to knock out which ones we can affirmatively conclude aren't there and just assume you're saying what you want from us it was after the to say that the commission can't rely on fish and wildlife service those cases one is called resource center and the other one i'm certainly drawing a blank in those cases the resource agency didn't have some information that the the action agency had wasn't sharing all that evidence or had some knowledge that hadn't shared so in that case in those cases the court said well you can't see your line of fish and wildlife for no official reason whichever anstey if they don't even have all the information but here there's a wildlife within if anything a better position so working together both agencies said you know as as the language in fifty of our four to fourteen is if you move to determine whether move to formal consultation you begin with informal consultation which we had here and when the resource agency issues an opinion that it is not likely to adversely affect the species formal consultations not required that's how the regulation works and what happens when all of  it's and this is the operating license that is going on now the critical habitat designation apparently came out the day before the rehearing order but here it didn't change anything it's not an agency action it's a reaffirmation of the agency action that already happened event of course that rehearing order had been in process i'm sure the commission didn't even know that because critical habitat doesn't exist happen for but the current my understanding is that that doesn't h and actually became effective a month later after the rehearing order to protect the species but the question of whether there's actually a violation and an obligation to affirmatively do something is a very different legal question and we could go on all of these type of projects and species are being listed all the time as i think the court recognized in california sportfishing at some point you could just be requiring formal consultation all the time i did want to get to the substantial evidence that uses such an important case and i want to emphasize preponderance of the evidence and who's right this is an expert agency with expert staff that in the environmental assessment performed and they said in that you know independent analysis using their professional business judgment the commission has biologists and engineers and technical experts on staff and if you look at the end of the e a the people who prepared it are people who know the science and the e a a goes very  fed to them by a party they take all the evidence in front of them and inform the commission so i just want to clear up that staff includes some scientific experts it's not a menial staffer hearing something for a commission that may i puts this responsibility for issuing hydro licenses with the commission gives it the responsibility and the discretion to take all these conflicting interests all of these parties various state federal agencies interested parties licensees environmental groups consider all of it and weigh all of it and consider and develop a concert comprehensive plan that in the commission's judgment represents the best use of the waterway and emphasize it's not a preponderance and apparently quite a case from the circuit has the best explanation they even if this court thinks as an original matter that it would come out differently it still spent i believe eighteen to twenty paragraphs in the rehearing order going above and beyond what it needed to do to explain why no parents wasn't better it was highly speculative and not just marginally strange trouble for two but but not only marginal but even speculat these are very tricky issues the projects displaced fossil fuel fueled electric power generation that the region know uses thereby conserving nonrenewable fossil fuels and reducing the emissions of noxious by products caused by fossil fuel combustion so incorporated into the license it's a warning incorporated license and no one is challenging fact that they weren't there there's no effective release of this court can grant against the forest service that would benefit the fishes and so in our view hit number one participation this licensing process started back in one nine hundred ninety one ok and went to two thousand and three when the license was issued all throughout this process multiple agencies and petitioners have grappled on the basis of science with these issues because in fact i think if you read the and i'm sure you have first multiple orders the actual licensing order the petition for rehearing the order on rehearing their grappling with scientific issues hydro geology just to give you a picture of the streams about the wits of this room where is the channel oftentimes of water would be just about the size of this podium and storm events come through scrub through the stream and the actual channel will vary over time and it can be anywhere in the larger that ok so we have a very dynamic stream for talks about that we have a very steep canyon and that's why hydro it was targeted for hydro back in the one nine hundred because it's very steep canyons the water comes through very quickly ok we have something that's very unique to this the soil in this area which has a stream surface why are you actually needed in this area because of the stream that ceiling you're not getting all the time coming down through the stream that you actually need an up welling of ground water and so you actually need ground water to be perched on a bedrock and be pushed ok and that's how we have plans to conserve i it's not from the stream that who today can be here tomorrow it can be over there and the next day can be over there so so that is why this dynamic stream bed th actually you can issue a license even with the presence of the endangered species there is the fish and wildlife and for find that it's not likely to if not adversely affect the species and we have a finding of multiple this and in fact and the fish while they're found this project to be beneficial because one other thing i haven't told you about the stream with the gaining in the losing reaches where you have this upwelling you have enough ground water to stay right where you don't have that upwelling there isn't scientists and i do not want to burden the court with my personal views the fact is the record shows that there is scientific controversy as to whether low in the reach would be beneficial to education and t other values in the western week we heard from the other side the commission staff isn't your regular kind of a fact finding operation but the commission staff is comprised of many different experts and people whose job it is independently taking into consideration all the information they have come up with some clue conclusions do you disagree with out about the commission staff the commission staff may indeed have experts on it however neither the license nor the rehearing order shows any evidence that they grappled with the scientific evidence and i think they say i've read all the stuff and it looks like that's exactly what they're trying to do figure out what their responsibility is and what all the factors are that way on the various decisions and then come up with an appropriate decision taken all the information they consider it and here here you go and to me this case sounds like that's exactly what happened over a long period of time the outcome wasn't one that you particularly like but it seems to me that they did consider all of this and use their specifically appeal on that basis because it would have contradicted our appeal of the forest service is there you to provide adequate conditions we would have had to both appeal the forest services provided a condition six that was inadequate and say that nonetheless burke must have included it and that was simply a contradictory position that the petitioners did not put themselves in but this is the only forum in which the forest service conditions can be raised that i we did we were crazy well not knowing the licensing state of mind or anyone else's in this case i really can't say but i did want to say that we believe that we did that  hear our claim to the forest service the forest service did not hear our appeal and we would like this court to decide on that issue lastly i wanted to just makes a very small point there is no evidence although first has said that it's making an ongoing effort to protect the species there is no evidence on this record that it has reopened and even a formal or formal consultation and restoration of this creek is possible that's what i want to leave you with here is that both the  water board fish and wildlife service department of fish and game and petitioners all believe that six to seven c f s in this creek will improve the quality of the creek improve vegetation improve water quality and other values  and that is possible it should not be an all or nothing decision california california sportfishing are dealing with a licensed it's already been granted very basic one very basic fact the the that actual project works what they were what kind of maintenance is done and even the amount of land in the forest service that was occupied by the project clearly staff was still in gauge and acting on this particular permit this was not something way down the line where they had it had been operating with it was directly responding to our real here in order