surface this is a problem i have with your entire case it appears outcome driven and the point of the procedural rules is to make sure that a hard look is been taken seems to me that if you take a hard look at something and you decide that we just simply have to wipe out these toads because we need some kind of an international airport i mean the toads got off and you start out by telling as you don't like the outcome and i don't think this case has anything to do with the outcome it has to do with a process that's been used absolutely absolutely why do you start out telling us you worried about a toad well i'm worried about very confused because some people think they're outcome driven and they're not so much outcome driven as that is to simply make sure that a hard look is been taken at the environmental consequences that everything possible has been done to mitigate those who are you know the stuff that we constantly for instance if you claim that the fisherman and war service has incorrectly estimated how much of the rivers water will be used when so the question of whether   i don't know how they could possibly be relieved that since it's an then what's the problem they have gone have an issue the rod without getting the far one and the clean water act is very clear that you have to catch the certification before made by the fish and wildlife service when it is coming out with a biological opinion in deciding what is necessary to avoid jeopardy to a species are entitled to a great deal of deference the fish and wildlife service is the agency with expertise on what these and they measure it monthly if the full flow or depth is more than twenty five percent drop from the previous month that triggers that that action level for action levels are going to upstream end of the project and that is because at the upstream and there's something called the bedrock channel that's where the sun pacific when they put the railroad through instead of building two bridges they just reroute this stream is used to be able to do in the so they have to monitor that upstream area through to make sure that the flow that's coming into the bedrock channel is not stopped by reason of project pumping and to do that they have to monitor the groundwater level and relationship obviously between the aqua for and the surface and so that's why they they do all the monitoring to make sure that the pumping from the aco for is not adversely affecting these two areas where the habitat  mandatory conditions and they've got to be got to be followed so i think if you if you look at those conditions and if you look at the in take statement you'll find that you can take a very that the b l m when it came out with this record decision a rod in two thousand should have gone to the state for a certification but they never raised that before the agency when they appealed through the procedure to  where the agency has an opportunity to deal with them and not just bring them up in a later lawsuit and so we've cited the marathon case for four waiver and we believe this would be appropriate case for a waiver we also know claim at the threshold but on the merits i don't think there's anything to the claim really the statute refers to a permit or license for an activity which may discharge and as was pointed out during the servants argument there's simply no cases which have pushed this requirement back to this sort of early approval of a plan which is what the rod was and i think that's because what congress clearly had in mind here was approval of that program has been taken over by the state it's run by the state of california so you get your permit in that case from the state and they've not been freed from any obligation to pursue these should the eventuality occur that you've describe permit but if there is no federal permit and we don't and we don't think that the right is that the states requirements are still going to apply this project is going to have to comply with the stormwater requirements and so forth and so i think that goes to the equities as well if you look at the pointed out in their brief which is the habit of santa clarita to throw as many claims as they can against the wall with the hope that something will stick and they threw a lot of claims against the wall and if the case none of them stacked and everyone was ruled against  your honor maybe so but it's what it is when they say that how can how can our arguments to be without merit if it takes the district court sixty pages to review them and stand next thousands of hours to dispute them is why because if you throw countless claim against the wall the court diligently below examines each and everyone decides on the merits whether is good or bad and decided it was bad and the role of some x is the party for the district court is to try and so there's a tremendous analysis in the summary judgment order itself there's a tremendous analysis in the findings and then you have a summary judge that attorney order itself which stands incorporates by reference all those findings and all that an different claims are that are being made or that ultimately after twenty or thirty or forty years of challenges appeals and reviews so one of these documents is s c r two hundred one of these documents is s t r two hundred and the other have got to comply with all the rules well that's fine and if that's the way the rules should be we should tell congress that because the last sentence of section four one anyone says no license or permit shall be granted until the certification required by section has been  says that they have to get a certification if there may be a discharge in the waters before your time runs out the documents that i asked the other side to identify that or not identify by the disregard and you can see those of the documents or dispute officials hired contractors and others were motives to be relevant cannot be attributed to the city from whatever the motives were of people who are urging them to take whatever action they were taking who said