good morning your honors i meant tonio rosman and with me is david moore from roslin and more we're representing the mendocino county parties one set of petitioners in this proceeding those who are the law for years years of water from the elan russian rivers and the upper russian river valley we would like to reserve three minutes of the fifteen minutes that the court has a lot of to see for reply our case is founded in the failure of her to meet three important duties first to protect those who have relied on the lawful license for diversion of water from the ill to the russian river that includes the family farms in the upper russian river it includes the city if you and other towns who for nearly a century have built a dynamic and commendable economy based on that license secondly ferk has unfortunately abdicated its own authority and responsibility under the federal act and ironically for as also failed its duty to the species that are at issue here the starting point in this case has to be the statute section regulations and the action words are that each federal agency in consultation with numerous under section seven must ensure that agency action does not jeopardize endangered species the regulation reads the federal agency shall determine that its action does not jeopardize and in the federal register notice that accompanied the adoption of that regulation nymphs and the secretary of interior make clear the service recognizes that the federal agency has the primary responsibility for implementing substance of command of section seven and the point you're trying to make is that in this case ferk abdicated its authority and duty to decide for itself what was the best regime in making it nymphs that was based on a faulty project definition and faulty assumption that it is under section seven so you're saying that the mistake is not that they said to nymphs what do you you or your position that said it has to be that they can't defer regardless of the good things of the agency they're deferring to it is they have discretion to defer to naps on matters where next has expertise so let me make my question clear i don't think i did after i'm trying to find out just how much you're asking for this or and i want to know are you asking for rule that says work has to make an entirely independent decision and can't defer to nymphs no matter what or you only say works has to suspend its deference it makes an arbitrary and capricious decision it is the latter your honor and that is because under the federal power act and the endangered species act which have to be read together congress even under the a intrusted project definition to the action agency it is first who said this is an amendment of a final license and then if this entire act it's not all that complicated alcoa's as one agency can defer to another so long as the deference is reasonable and your argument here is it wasn't reasonable because they didn't know what they were doing they made a mistake yes sir that is not a reasonable deference in fact as we just got your point you know thank you so i will not belabor that point any further the point is that not only was the project missed a fine but the baseline was missed to find and that is crucial here is first in its two decisions in both its basic order and its recurring wit h incredible internal instantly on this baseline yes i was if i understood it right the baseline that infuses is if there was no damn that's correct or right but there is a damn right there is a damn it was full actually it was a little bit more refined than that if that's the right ironic word to me asking is is the baseline here like the garden of eden is the baseline like if we tear down the dam and the reason i ask it is if we tore down the dam we put the stream of rubble and mess it wouldn't be like the garden of eden no sir in fact the baseline the first used was a baseline it does not exist it is the run of the river with the projects in place that's the way i tried to avoid the implication that i think what does that mean  i'm not sure what that means to say that there is a baseline that consists of the river running with the dams in place but what firk properly understood the basically the baseline is what it is now the bas running in the dams are in place i don't understand what the words mean but the baseline is also the operation of the dams under article thirty eight which is a part of the final nine hundred eighty three license that is the baseline and that was for first to determine what that baseline hit is the baseline that this court in the american reversed case validated and in response to our complaint and the complaint of others including the california department of fish and game that hey you're basing this on on nymphs is artificially defined nonexistent baseline first response was well each agency can use its own baseline and the problem with that is the action agency and has to make a decision and it has to know on what basis it makes that decision and for purposes of need but it has to write its environmental impact statement on a stable baseline and then i call thirty nine goes for discretion to modify the article thirty eight floor regime that's right and that is the action in this case the consideration of whether and how to exercise that discretion but one of the options open to further would have been no action and the environmental impact statement probably properly included that and no action would have meant that the article thirty eight flows which everyone c cedes are far inferior to first preferred alternative of the potter valley irrigation district alternative everyone concedes that article thirty eight would be the worst possible outcome for the fish and yet does have that discretion to do that and if earth had followed that course there would have been no section seven consultation there would have been no federal action but that's not what for did ferg use the information that it gathered it built a consensus with now only with department of fish and game with p g any everything that we talk about in the law schools that people ought to be doing in the resources area was done in this case and nimbus pulled out of that consensus because it wanted to pretend that the project was de facto relicensing and that the baseline was some if you will semi garden of e rather then what was in place lawfully permit in one thousand nine hundred eighty three so that the mendocino county water users knew for a period of time up until you're twenty twenty two that their investments would be protected and so that the licensee itself p g any and yes this is up almost one hundred year old dam but that that's part of the problem it takes a lot of money to maintain one hundred year old am and p g and he needs to have some security as the federal power  premature and what we're seeing from memphis here and from the nonprofit private co petitioners in this case is an effort to accelerate that de consideration let me switch gears just a feel that underneath one has to look at all alternatives whether they are feasible alternatives it is the obligation and the prerogative of the agency in the first instance to reject an that's not feasible should is they didn't consider official is that all we do not take a position on that in in our case i think some of the other petitioners take issue with that but we did not intervene in the other cases your honor so as much as we might want to say something about that i is our place our concern is that that for i mean that first properly understood what it was doing properly defined a baseline and then just totally abdicated that based on the irrationality of the nems pretending that it was their project you know in an ideal world perhaps the secretary of interior would have to grant approvals for projects like this but that was not the congressional design and congress recognized that there are a host of federal actions that a host of federal agencies make in our country day in and day out and that each of those have to be measured by not throwing out generations of legislation that defines the rules under which firk licenses hydro facilities under which the an r c may deal with nuclear facilities and the like and it is that if you will destruction of the congressional design that really is at issue here i would like to just briefly also touch on the question of the failure to articulate and identify the impacts that would flow from not recognizing and protecting california water rights i think we've adequately brief that but you see it shows that if if you will your honour's of the connected connectivity of our case because if one doesn't start with the proper baseline then which recognizes the existence and exercise of those rights one cannot rationally determine what the impacts would be from from p s or i'll give you that right now page twenty five twenty nine thanks to that the commission's current conditions baseline has been affirmed on judicial review does not mean that other agencies cannot validly use a different baseline there has to be one baseline here your honor so i will reserve those three minutes and thank the court very much i let me make just one point before i leave in our case in chief on remedy the remedy here in our view would be for the court to order the commission to set aside its decision that would reinstate article thirty eight flows but the commission would then be free to immediately order in the pot valley irrigation district alternative which it recognized as the preferred alternative because that was adequately addressed in the environmental impact state good morning your honor my name is stephen volker i'm attorney for petitioners california sportfishing protection alliance at all i'm here to explain why we feel this court must reverse f order and declare that the order violates the national environmental policy act primarily because it will miss consideration of two vital feasible and  repeatedly documented alternatives the first is to consider fish ways and if you'll help me understand that yes or honor the way it looked to me from the record was that you had to lift the salmon about one hundred thirty feet in elevation at thirteen fifteen story building as one way is kind of a fish wheel it would be a sort of fish ferris wheel another would be a fish elevator and another would be a series of terraces so that the fish could jump themselves at your fish ways that the third way the has been used there are major fish live and i believe they are at approximately the height on the columbia river that height i thought they were shorter and there are the traditional fish ladders on dams as high as ninety feet this was documented in the record there is no study in this case that shows that either alternative that is a lift or the alternative of a ladder would not be feasible is there any study showing that they are i'm thinking of fish wheels in the yukon and you can watch the fish get sunburned and dry out and die as i can't leave the fish out of water that long i'm not aware that anyone proposed a fish wheel your honor and i am familiar with the fish will go on the yukon it's a means of harvesting the fish as opposed to elevating them over a structure as far as i'm aware how do you is that there been any feasibility study to show that this fish way that your client's proposed at is feasible there was expert testimony from three sources that the commission should consider structural alternatives to maintaining the dam in place professors robert curry and terry rowe last testified that decommissioning or fish way should be considered and dr curry extended enough as opposed to being too steep for official enter the need to use there is no engineering study directed to that question that's an excellent question and we believe the burden falls on for your honor in this case to assume responsibility for answering this question was raised by a number of x i'm asking you if you're asking saying that they have a duty to consider something that's never been done and there's no indication that it ever could be done successfully facilities and there are fish lift that can transport fish the requisite one hundred thirty vertical feet how do they work they allow water to come in and along with the fish that are located where the salmon are most likely to be located and then they're transported up somewhat like an elevator so it's an elevator that's full of water this is correct your honor and this is interesting article about a seal that now studies and nymphs itself intreating for rick to take this next step and it simply didn't happen it should not fall to the private petitioners who lack the funds are not supported by the taxpayers to conduct such a study with respect to silly so we wouldn't require them to do it that's correct your honor by the way you know when you actually i just point out i have to split my time with the pope petitioner and i should have it announced that at the outset and i also wish to reserve two minutes i've got one more question on my mind i don't know which of you is going to deal with it and i don't understand the baseline i don't understand what the river flow with the dam place means there are a number of definitions of baseline depending on models that predict how the natural hydrograph would appear in the absence of the dam but the dam is there if you tore down and then the river be full of rubble a impact on the habitat that's absolutely correct your honor in our case that the situation is complicated by the fact that we have many years of accumulated to bree both upstream and downstream of the dam in the river that has to be  think you're saying the baseline is not anything real but a model of what the stream would be like if the dam wasn't there is that right that's correct your honor i'm sorry  so i have eight and a half minutes and if i'm reserving two i should excuse myself because we have fifteen total in this case i find it particularly ironic that the national marine fisheries service which was so critical of the environmental impact statement and its failure to look at anything other than a narrow range of alternatives that tried to adjust the flows in the yellow river below the potter valley project committed the same mistake when it prepared the biological opinion here and what the u s did is it started with a single assumption and that was and prudent alternative would not adversely impact both the survival and recovery of yellow river fisheries and there's one or two cases that i think are particularly relevant to this case both of which were decided after the cubic feet per second in the summer yet it approved and are a reasonable and prudent alternative what we call an r p m a that in dry years and critically dry years would allow significant reductions in the that minimum flow and what the court found is that the biological opinion was inadequate because it failed to articulate a rational connection between the facts found and the choices made and found the agency cannot implicitly conclude that a species would not be jeopardized by the proposed action instead it had to explain why in that case providing for closed below the minimum flows that they thought the fish needed would not a right i mean it's certainly not the petition of petition or the position of petitioners that we want to return to the article thirty eight flows but we do want the matter to be remanded to the agency for  complete analysis of alternatives and an environmental impact statement and for preparation of a biological opinion that goes through the analysis of determining what the impact of this project is and what the impact of the r p i proposed  counting station below the potter valley project in two thousand and three seventy five adult steelhead i think the biological opinion is the fish numbers go up and down in the biologists have no idea why having fish counts go up and down in the yukon in their  built but the problem is we have a dam there and we don't have the whole historic run of the river anymore so that the fish have lost their access to their most essential habitat where they would storm or inland in the only the natural flows below the dam without considering whether or not those close alone without access to the upper habitat would protect the first rate because in the summer temperatures the evidence in the record indicates the temperatures are too high for the fish even under the natural flow condition in the lower reaches of the river and what the fish used to do before the project with summer in one and in the cold colder waters but they don't have  steelhead there the juvenile fish would be and it's the river system during the summer and what the california department of fish and game said and what u s forest service said is that in the summer under the historic conditions natural flows water temperatures fail to really grapple with here it didn't address the scientific information in the record and even where they try to apply proximate the natural hydrograph the actual flows that are provided for under these that are p s a are far lower there a nymphs should be required to revalue we do the biological pinion and first should be required to redo its environmental impact statement to address the environmental issues associated with its action here the court learned perry representing the respondent federal energy regulatory commission and i would like to share my time with mr shelton who is here representing the national marine fisheries service who authored the biological  pinion and issue the commission reasonably just for it to the national marine fisheries biological opinion which was reasonably based in considered all of the scientific arguments that are being  challenged by petitioners and reach their own conclusions and under the statute the endangered species act it is set up say that he could be consulting agency is the expert agency supposed to make the final determination on questions that have scientific questions regarding what is the best result for the fish in here with regard to the baseline issue i think it's important to look at what it is exactly that the national marine fisheries service considered when they were looking at the project and trying to determine how to avoid jeopardy to the fish the environmental baseline is defined in the regulations includes past and present impacts of all federal state or private actions or other human activities in the action area and when the national marin conditions it looked at the past historical conditions which resulted in jeopardy and decline it looked at the current environmental conditions which the this resurfaced also found the minister destroyed habitat and then it looked at the proposed action of the commission and it determined that presently or in large part because of the fact that it would still have the flows low fixed flows during the summer time  commission's proposed action would also result in continuing declines and therefore the committee the fisheries service then look to what would be necessary to avoid jeopardy and at that point they determine that what would avoid jeopardy is mimicking as close as possible the natural flows of the river what would happen if they did not exist and so i don't understand why that would comply with the the problem is that the fisheries service found that the current conditions which are the article thirty eight flows would result in jeopardy and also that the proposed action would result in jeopardy and the point being that the point that the al court made is that can't be under the statute that you can have a existing condition that causes jeopardy and a proposed action is only marginally better than the existing conditions but still ca jeopardy and satisfy the statute rather which you have to look to is what is necessary to actually avoid jeopardy to the species i can't make sense of that i mean we're looking at the garden of eden and can't be the garden of eden once there the damage has been there for  hundred years but you can approximate the close in what the fishery service concluded was under its recommended action it would obviously approximate so massive you have also if you're if you're saying approximate the flow street that is the baseline that means hypothetically remove the dam but removing the dam hypothetically seems to conflict with including the dam which is what the reg says doesn't mean operate the dam so as to approximate the natural river flows that's right your honor and that's what they are that's what they are recommended action and contemplated was operation  so that it comes as close as possible to what would have been the natural conditions that the salmon would have been existing under so what they evolved to and what would help them to survive and preserve their habitat and now it was what trying to do you're saying what that means in practical terms is a dam but no reservoir whatever water is upstream from that to him goes over the dam goes downstream from the dam nothing is locked up by the dam into a reservoir no your honor to what they did was they came up with a flow regime that as closely as possible approximated the natural condition sufficiently so that the fish would survive  recover as opposed to further decline you're giving the formula and i'm trying to make it concrete my mind to see what that means well to make it concrete let me tell you the problem with the article thirty eight flows which  gallons per minute or a measure of how many gallons moved from one place on the river to another place and on the river over a period of time when you say approximate the natural flow  translated that into what it would be if you had no reservoir just a dam so whatever waters upstream goes downstream but when i asked you about that you said no that's not right that's what i thought you meant when you answered judge cross question but evidently i did not understand he meant so put it in concrete terms ok well so you're dealing with the five cubic feet per second flat rate and what the marine fisheries service was say that was what the existing flow pattern under article thirty eight and that was under the proposed action it would also be that fixed flow five cubic feet per second during the summer and what the marine fisheries service said was we want to have a variable flow that ranges from three cubic feet per second to thirty five cubic feet per second which depends on whether it's a wet year or dry year and so during years where you have more water available it would be you would get more flow so that it would be cooler the habitat would be better in the pipe minute predation would be reduced that's what they mean by they were trying to come up with a flow pattern that would more closely approximate what would have happened naturally but  translated into a very specific it's not just releasing all the water that's impounded by the dam but it's coming up with a flow pattern that is materially better than the one that's in place and one that was proposed for certain diversions that they were trying to make sure that they could do this now right this right you are in they were just trying to make the flow pattern more closer to what the natural flow pattern would have been so as to improve the habitat in the build opinion they looked at all the scientific dispute and evidence and the commission was in a position to defer to that decision because they are appointed by congress as the expert agency on what is necessary to protect the same and somewhat distracting to put a flow which is the article thirty eight flows and they looked at the proposed action and said it's the same closed as the five cubic feet per second flows you're not making it any better with the proposed action and that's how they reached the conclusion that the proposed action good as the current flows result in jeopardy salmon and that's but then you have to make the next step which is ok if the proposed action won't fix the problem with it won't solve the jeopardy what should we do and that's the point at which they looked to come up with a reasonable and prudent alternative jeopardy to watch jeopardy to the listed the three listed species here that's what you focus on fish absolutely right that's that's mrs focus  jeopardy in other words they were saying the article thirty eight flows have to be part of the baseline we rejected that position because the article thirty eight flows were expressly a temporary expedient when this project was ten year study and after that the commission can determine what flows are really needed in order to benefit and maintain the fisheries so to to to make article thirty eight flows part of the baseline just ignores the th license and the intent behind the license which is that this would just be a temporary expedient i have two questions about that i guess one isn't so much a question it's a difference in focus next duty is to preserve to have habitat for the fish and to provide the necessary studies to do it works mission is different first mission is to balance and have various considerations wildlife recreation and other things in the production of electricity sufficient for people and your baseline assumes it's still hard for me to make sense of exactly what it is concretely it looks to me as though it assumes the nonexistence of one hundred year old tam and that because that would be better for the fish and i can't understand how you reconcile that with the language of the greg there which which says you have to include the past and present impact of federal state and private actions nist recognizes that the dams are there and consider the dams themselves as part of the base that the key to determining what is and is not part of the baseline i think is what's the discretion that's available to the action agency when you say considers the dam as part of the baseline how can that be if the baseline is a flow of water that would be there with after the dam the well because you could theoretically run the project as a run of the river project and all the water coming up to the top would come out at the bottom with the dam still in place but  regulation is very general that basically just says look we're the definition of a fax of an action are the the effects of what is proposed when added to the baseline and so it's really garden of eden you start from what you have discretion to do in the particular person with want to clarke says that that includes the past and present impact of all federal state or private actions and other human activities in the actual area i mean that means you start where you are not in the garden of eden right you know i'm not contending is that you start in the garden you do have to begin with those things that you did that you don't have the legal ability to change in this the people in the cities and the dams know nothing at there are lots of rivers like that and they change all the time they move around they're in different places from one year to the next totally different flows  you really can't predict them they're too complex they are very complex no i think that the baseline issue shouldn't be bly of proportion here i think really the only baseline issue is whether the article thirty eight flows have to be considered as part of the baseline and basically put to one side and you know our position on that is that they are the whole reason for the article thirty eight flows with that it would be temporary and the first would have discretion to choose another dams or added fish ways and there again you have to go to the question of what does for have discretion to do in this proceeding and we thought we believe that first correctly defined its own discretion here as being over flows because this was not a relicensing this was an amendment of the license and the only issue the men really kept open was the flow issue so that's why the so that at least in wet years there would be more water that's passed through during the summer because there are still have fry that rear in the area below the dam and need the additional flows to keep the temperatures down grappled with the all of the other issues in of in it's like the biological opinion now i think it's also important to point out what issues have been preserved here for this court's review the issues that the baseline and the issue of whether nuance should have considered the fish ways those were preserved by the request for rehearing that were made by each side no problem there but the that request for a hearing did not raise to a couple of the issues that the environmental petitioners are now putting forward which were the issues of the critical habitat the consideration of critical habitat and whether recovery was sufficiently considered and also whether in determining jeopardy and whether the reasonable and prudent alternatives would avoid jeopardy nuance was under a duty to have a specific criteria those raised today but if the court has any particular questions for me and so i be happy to answer them thank you very much honour's our appreciate the court's attention this late in the morning this means a lot to a lot of people let me briefly reply and i think the court has learned a lot from hearing from the response the only one you can justify its conclusions is what we've just heard article thirty eight is a temporary expedient in the covello community case this court decided that article thirty eight to reconsider the flow regime that established but once that agency action is final that fixes the baseline and defines any future federal action to change the final action we can and this has been a wonderful discussion this morning as all of us perhaps try to think of i think i don't follow what you just said at all then i yes you're on to that but language of thirty eight thirty nine thirty eight installs thirty eight installs a floor regime and the baseline is not just the hardware if i can also anticipate you have kleinfeld question the baseline is not just the hardware in the field of water resources the baseline is also the operational rule curve and the best way to for the court i think to see that i can just really recites from record fifty three thirty here in one nine hundred eighty three the final order said the settlement permits complete review of the fishery flows after ten years of the opportunity to correct any deficiencies at that time that's correct sir but it does not require that they be changed and article thirty nine can authorize a change but to return to the point we tried to make earlier the no action alternative is to leave article thirty eight undisturbed and that is no federal action that is no jeopardy but regardless of what we think it is let's look at what firk said it is we heard this morning from first attorney that first did not that first determine that nance had it right but that's not what first order says let me read from paragraph one hundred one on page twenty four eighteen first we have concluded that the pv ideal alternative provides a sufficient assurance of benefits to the threatened salamone it's and less risk to other water users then the regime provided by the biologic opinion and here is the clincher and what not jeopardize any of the listed someone it's we're charged by the statute to make that determination consulting with names but when nymphs misreads things further cannot go on the final citation i would leave with your honor's to explain this whole baseline thing authority to just flow recent release schedules or project structures and operations article forty six reserves the commission's authority to require changes in the project works or operations that may be necessary to protect and enhance those resources and values if we came to a condemnation process and we're only saying look at absentee potential pluses and minuses sixteen u s c section eight zero seven eight reserves that submissions to for a stated with all the proposals currently being considered implementation would likely adversely affect listed someone of species only decommissioning of the project would eliminate adverse effects that set for eight seven one coal and