let me briefly remind the court of how we are here today challenging to forest service failures in a direct petition for review under the federal power act as this court has court has held in california to save our streams we must challenge the final li and conditions to protect that land and its resources under section fourteen of the federal power act turning to my first point the forest service failed to meet its legal duties under the northwest f and restoring a properly functioning aquatic habitat things like right carrying reserves of the sediment regime water quality habitat complexity one of the four components of the aquatic conservation strategy is watershed analysis and a watershed analysis is to be the mechanism to ensure that the aquatic conservation strategy objectives are met watershed analysis shapes the projects to meet those standards and they become a vital specifically clearly the forest service did require changes in the function of sort of springs dam so that we could have fish passage there talking about allowing limited fish passage both upstream and downstream but the aquatic conservation strategy requires a much more than fish passage alone it requires the forest rovers service to take a broader look at this entire watershed and when the settlement agreement and the for each terms and conditions focused only on fish passage they missed the other parts of the water conservation strategy that they're required to look at for example there is prime rare and unique says the water should analyse this spawning habitat that is inundated that is ground by sort of springs reservoir that is not addressed by a fish service must look at is required to consider under its aquatic conservation strategy legal mandate and did not and we know that because of the evidence in the record and the evidence in this record shows that the forest service it just looked remind the court we're talking about the last dam of eight it's not one damn a time the inch higher project consists of the eight dams on the upper north of the river the record compiles that best science from the forest service itself and from outside analysis and again these are the documents and the mechanism in the aquatic conservation strategy that to protect and restore the watershed they have the scientific information that support removing the biologist the geologist looking at a broad cumulative view of this watershed said that those other options which the forest service when finally went with were not as good and were not going to do as much and in fact would not meet the aquatic conservation strategy goals the other evidence in the record of course the forest service reports leading up to the decision to enter into the settlement agreement these are by far as there are scientists with the people within the agency stating very clearly that none of the other options meet the aquatic conservation strategy objectives and in fact fail to prevent i mean and i feel they prevent attainment of those objectives if you go with that route so she's looking at those particular documents in the record that we need to to judge what the forest service decided to do and as you said the foreign service was advocating when it came right down to some agreement they changed their minds and perhaps if we had the evidence in the record support that change we would not be here today but we don't have the evidence in the record and the documents of the forest service points to to shore up their position cannot bear that weight there is a march one thousand nine hundred nine critique of the watershed an the other documents which the forest service points to such as the consistency determination of what the justification statements they don't contain the scientific analysis and in fact the forest service in its brief admits that those are not scientific documents they point to other scientific documents but those other scientific documents we submit to support our position in order to meet its legal responsibilities under the aquatic conservation strategy the forest service had to do more than simply look at fish passage throughout most of the process first in the forest service plan to jointly issue the environmental impact statement that changed when the forest service entered into the settlement agreement between pacific corps and the various federal state agenc that point in time for roche to the forest service and said it would now be a conflict of interest for you to be a joint preparer of our environmental impact statement and they will no longer with they do that and that's why this case is not controlled by l cited by the forest service these are not and this is not an issue of a lead agency with a cooperating agency these agencies had planned to go that because route but as of the settlement agreement it was decided that they could not go that route the second reason point two miles of habitat to the watershed as a whole we don't have that any i guess you might also have a look at how the dam interrupts the downstream flow of sediment or large wood and what that means to the wild and scenic portion of the river we don't have that in the i guess you might also look at the impact of predation when you do provide fish passage over sort of springs and whether that makes the issue of fish passage alone worth more or less if the fish are going to get eaten by warm water trout when they get over the dam those that analysis that comparison of alternatives is not in the for us and would be useful to the public i think to the forest service itself and to this court in reviewing i other issue of course with the i guess is timing the fergie i ask came out almost two years after the forced to risk it entered into the settlement agreement which drove these four easy terms and conditions and because neither is supposed to help the agency come up with  forest service about whether they have those duties the dispute is whether they've met their students let me turn to my final point against the forest service and it's a it's a there's a nesting issue here that i always have a hard time getting a handle on but because the forest service did not issue any of the document it did not issue a record of decision under its regulations because it did not issue a directive record of decision there was no opportunity for administrative appeal and when the forest service issued its clarifying memo in may of two the agency relies on the scientists that's got science that's going into this decision for really setting out the issues and when you're talking about something as complicated and controversial as removal of one of the dams in this project i think we would all have benefited from that regular administrative appeal what we have now is we have the documents in the first record but because the first record is about a larger issue of the entire project we don't have that focus and that clarity of what you would get in the ministry of appeal for that record their explanation doesn't hold up because the explanation they give in that may two thousand and three clarifying memo was that we know long we don't want to do it anymore and other agencies don't have it straight appeal processes which is incorrect agencies are now adding administrative appeals prophecies now but not then but they are going directly into sort of it was correct when they were saying it but additionally i think that if they were going to change such a fundamental right as an appeal right in this instance sense of what they were affecting as a public a public right because the other reason than that that i think it makes a difference is i think in this case if we'd had the ministry of appeal you might have come up with a different decision that the record in the facts on this are that the forest service was going one way and the scientists were pointing toward asking for damn removal one of the removal of one of those dams and then at the last minute things changed with very little less well nation and administrative appeal an appeal to a higher  part of the forest service might have changed that they might have looked at the evidence a new it might have gotten it out of the basin and into that into a different different decision maker we don't know that but especially we had such an abrupt switch in position without as one nation it would have benefited i think because i think that there is some real force you draw odysseys in this case there are certainly a couple of claims that are proper properly before the court under the federal power act there they can challenge collateral attacks that are not are things that don't have anything to do with what that you couldn't under the federal power act you can affirm vacate or modify a first order and there's applied challenge like here we didn't there was we didn't get an administrative appeal we think it might have changed things i have plenty to say about why it wouldn't have made a difference because of all of the input throughout this record if you look at this record there was such back and forth between the forest service and petitioners there really isn't a problem but as a facial matter the notice and comment rule making the declaration regarding the policy those things as as a production matter should be decided by district court on a record guess i would assume that that they would say they're injured because the dam isn't being removed but i'm going to go ahead and use the rest of my time to try to address the northwest forest plan in the aquatic conservation strategy and what is actually required here identify during the administrative process for issues that could use an improvement with respect to the dam one was there was no fish passage the other there was an indian it habitat the third was it's very difficult for there is in the settlement agreement specifically provides for a predator control project but because the fish ladders are are and will be installed and haven't been yet the proper course i think  if you take the dam out those issues are are most directly addressed however there is evidence in the record and work note of this and that split in its order that if you remove the dam there could be some forty years after the project was built so you know something's going ok on the river here and it was just this is a reason decision making process rather than saying oh the forest serv conditions of the river that we're talking about that in that the preprocessor conditions which is not the baseline here this court has held that you look at the project conditions as of the scoping during the first ten months following first beginning of its environmental review and during that time the forest service submitted its preliminary terms and conditions asked to make court they may go to first came to the conclusion that the environmental benefits of the settlement agreement exceeded the environmental benefits the dam removal the forest service agreed with that analysis and analysis and there pacific northwest research station report  and they disagreed with the watershed conservation conclusions on that question so it's not at all there that dam removal is the most environmentally preferred solution finally the petitioners claim that the forest service prejudged its for ease because it signed the settlement agreement first and before the birds yes it's just plain wrong because the settlement agreement in section one point one point two specifically provides that the final conditions may differ from the settlement agreement and then other provisions of the settlement agreement say what the procedures the parties will go through if that event occurs so there was clearly contemplated that the forest service would go through meet them or rip review anita documents and then make the this license and i think the question presented by the sort of issues being discussed by far service counsel is it is boiled down to if we want to challenge the deprivation here of an appeal two thousand and four which clearly say that all issues come before the court of appeals in the first instance under the exclusive jurisdiction provisions of the federal power act we want an administrative appeal opportunity we want need but here i want to i want to think about the substance here and how it would be helpful to think about what the aquatic conservation strategy objectives are and how fish passage alone doesn't get there but if you would look at the what the watershed an looked at you would come perhaps two different results if you look at the healthy prime and rare and unique spawning habitat that is inundated by the reservoir you would see that that issue is not addressed by the u s that we're talking about or the settlement agreement and you would have ended up with maybe perhaps a different look that would that would be important when you talk about there's no comparable habitat in this area that in court for the watershed as a whole judge wardlaw you asked about specific record size i would urge the court to look at the ministry of record one thirty two pages seventy if you're seventy one e r to seventy one one twenty two to one fifty one and it be art three seventy two five thirty seven to five forty seven these are for service documents these are the documents that say that the the option that complies with the aquatic honest conservation strategy is not simply providing fish passage that sort of springs dam we are not saying that it would be impossible for the forest service to come to the conclusion that it did that perhaps a dam removal wasn't the only option but under this record under this science that is in fact the only option that was before the agency and one factual error the forest service