good morning we have a crowded calendar this morning as you can tell so that's why you've got the big court room i will proceed start with  outset dispel the notion that this court needs to decide whether or not the buckhannon standard for dealing with the shifting and applies to this case it is our submission that under the standard that held lease conceded is the correct one and that standard that the district court applied in this case the order awarding fees simply cannot stand the ruck standard which is an adopted in this circuit for the where appropriate type of statute such as the endangered species act that is a political here requires that there be some success on the merits before a party becomes eligible you think that mark marbled marriot continued carson truckie i think i think the case rejected and said carson tracking is no longer guidance for the ninth circuit it certainly did your honor with respect to so we're willing to except that that standard the standard that the district court applied well that would be a higher standard is hardly a standard they don't have to go that far implementation and or to for cation of the endangered species act to set a higher standard relying on cars and trucks with the other case suggest she may have been wrong i've not prepared to accept that that's necessarily a higher standard i think that as a temporary restraining order which we submit did not constitute a ruling on the merits and then we have the september three hearings you just rushed over there not a ruling on the merits and judge henderson went much further and he had to go on the t r o and made some substantial at least as far as his order is concerned looks pretty substantially talking about an interpretation of the act which goes like why do you say he didn't rule i would judge henderson then indicated that he thought that maybe there was no difference between informal and formal consultation this was not an argument that the petition had made and so we went back and prepared subsequent briefs but he made a decision before the priest ever got to him so his ultimate temporary restraining order adopted his view without the benefit of our briefing i can't say whether or not that made any difference of opinion that it may not we don't  is it fair to say that by the time that the temporary restraining order is a temporary injunction was developed that she incorporated with judge henderson during the t r o she adopted the same reasoning on september of the reasoning that in her opinion informal consultation and formal consultation and as the regulations interpret them are the same that's a position of the services implementing the endangered species act do not agree with and indicated to the court not just to expand you focus on what your state of briefing opportunity was with judge henderson what happened in terms of your opportunities around the merits before the september specs of the government transition that was there was further briefing done for judge patel before before that the temperature whatever may or may not have gotten before judge henderson you had a chance then with more time to put it in front of judge patel yes we did and on september three the the hearing proceeded on with a discussion about whether or not informal informal consultation with  then the judge he indicated by clearly that there was a problem with the ten day rule that she felt that to avoid that problem that a preliminary injunction would be issue but that she was unable to resolve some critical issues at that time for which evidence would need to be taken on the subject of whether or not coho salmon were present whether or not logging would constitute an irretriev stopped with the issue with the temporary restraining order on september three that judge patel indicated that she would need evidence or hearings to resolve the issue with whether or not a policeman or injunction would be appropriate under the circumstances and time that through try and make it a fuel while the process was going forward with respect to evidence as to whether or not the injunction should be issued she stated for example that it would not be appropriate to issue an injunction if there were no present and that the hearings would be focusing on that issue to determine whether or not that was the case i firmly believe that were we to have come to this court at that point this court would say why don't you wait and see what happened on september twenty three and twenty four with respect to evidence as to whether or not this injunction is going to be truly in effect or whether or not it's unnecessary ninety eight and again on october twenty one and twenty two thousand nine hundred ninety eight and quite frankly we expected a ruling very shortly after the conclusion of the evidence on october twenty two nine hundred ninety eight that didn't happen what did happen was that within two weeks the services indicated that formal consultation had in fact command we advised the court of that fact company agreed that that was the case we also knew that the decision of the service had to happen before march one because that was the date the funding for the headwater transaction would expire we also knew that there was a maximum ninety day period during which time formal consultation could proceed under the act so that it was time constrained was at that point and we also knew that the biological opinion would you shoot and the case would become that it really wasn't articulated in terms of the findings and there were no specific findings until march fifteenth you know an opinion that has been mooted and vacated by this court what we have is a temporary restraining order september three hearing date in which the court indicated that it was not prepared to make a final decision kept the plumbing or converted to islam in our injunction so that the ten day rule could be complied indicated that informal consultation between the services and in that case specific one for company but applies obviously to anybody is to be encouraged so that the potential conflicts between  applicant and the agency can be worked out if you are to treat an informal consultation in the same as formal consultation you then bring in the seven v restrictions in this case that was judge patel concluded that meant a cessation of harvesting trigger that cessation of activities at the time when only informal discussions between the applicant and the agency are taking place you mea is to apply what purpose is there what is the beneficial what possible beneficial purpose is there in triggering the restrictions of section seven v at the time when the informal consultation commences as opposed to  form that goes to the merits we have to decide you're saying well there's no precedent for this but the fact is the events overtook a legal resolution so in the meanwhile they achieved a station on existing logging and prevailed at least to that extent and then you may have for had it been fully litigated been able to win and then we'd be talking about prevailing party i suppose but your suggestion is because you think that your argument on the merits better we should look through the the movement the should actually  say you're pretty sure you're more likely right and they are and therefore they didn't get a benefit under they didn't you know advance the purposes of a well as i understand the purpose of the act must have a broader heap application than perspective an inherent unfairness in the way this rolled out ultimately it was determined by the agencies after three years of study but there was no adverse impact we have which we would submit as it was a unique interpretation of the law upon which the temporary restraining order was granted we have a situation where it becomes moot because the district court simply didn't make a timely decision on the m events both inside and outside the courtroom or are moving forward and what the point of the taint is relief and you're saying well they didn't it ultimately would have been proved factually and legally wrong there fore all of that that they prevailed on should not be compensated i would question whether our order was appealable but we certainly had no findings on september three we didn't have findings by the district court until march fifteenth  predicates for whether seventy would be triggered whether there was an irretrievable commitment of resources but when it was now there was no request for written findings there is no request for additional funds i understand why you thought the posture of the case was wanted to see the witnesses but she was willing to extend the t r o and then she phrased it for four reasons dealing with the rules that she would call the diplomat arrange know everybody who's sitting a counsel table knows what's going on we're going to hear evidence nine she's going to decide whether she's going to change their primary interest so what we're saying to counsel is in spite of that everybody knows what's going on if you didn't appeal that women are injunction at that time then you're for close now from arguing the merits of the tree decided because it became moot so he doesn't get any chance at all because of the posture of the case to say look she was wrong on the merits so therefore he didn't prove that the interpretation of the staff you're not entitled to attorneys fees now how do we deal with a situation like that and then let me back up just a second and i don't mean to be avoiding your question because i want to get back to to to confer prevailing party status on the party that obtained it even if the defendant never gets a chance at appellate review in the l s o case for example in the ninth circuit in this court it was a t o that became mediately moot there is no appeal from a t r o the the defendant never had a chance to challenge it on appeal this court held that that was that do not negate the plaintiff's prevailing party status i would there are a number of other of this line of cases that involve situations where things similar to this case occurred where there was some procedural glitch that might have affected the appeal and nonetheless the court said even though the defendant  law and that somehow the defendant had some right to have this appeal heard before the case became moot so that the plaintiffs might not have been the prevailing party i'd like to go back to this circumstance what judge patel decided and i think the court recognized that the first time around in this case was not that she could make a decision on a preliminary injunction i believe judge wallace you said it right the first time when opposing counsel was not here what she said was the declarations were sufficient injunction that's the language she used but i'm not comfortable with that i'm going to bend over backwards and i want to hear before the sack instead of deciding if soley on the decorations i'm going to hear live testimony because of this conflict next month i thought it was in march that she finally made her decision she finally made a decision but she concluded the hearings in the end of october right and didn't modify or read or or dissolve the injunction after hearing  opinion from september three to march through fields of march forward no she did not make a finding between september third on the record and march when she made the written findings but so the modified we can't afford to wait any longer or you know operations and you would have are you premature premature we might have argued premature premature and we might have been wrong we don't know what what the issue would have been at that time i mean that's that's just speculation as to whether we would have argued it was premature but as i think they said in their argument they chose at that point not to not to appeal it they chose to wait until the biological opinion issued and proceed with the case in  front of the trial court rather than seek an appeal let me ask another question do you have do you agree that the standard is the person they still and then you have to prove that you advance the purposes  of interpretation of then we argued in this record that that carson truckie had been at least in terms of whether we had to prove implementation or interpretation had been superseded by marvel or a lack the district court rejected that argument and imposed a higher standard on us we believe that we easily meet the carson truckies standard so that it's irrelevant whether there is a purpose this case how did you do that how do we meet that nothing of the sort your honor and i think the district court found that what the biological opinion said was with the restrictions that we have apart imposed there will be no  unlawful jeopardy to the species but it was not the biological opinion did not say that the plan submitted by pacific lumber as they were submitted would not have harmed species what it said was with these restrictions it will not harm them and pacific lumber emitted that the biological and pinion imposed additional restrictions on secondarily we would argue and that was a factual decision of biological opinion the six hundred page document it doesn't say anywhere in it specifically we're approving the planet just as our verses were not approving it is offered it has to be read in consider and when it was reading considered by the trial  court the district court determined that it had but even if it hadn't and we get in now into a line of cases like the animal lovers case with we've cited here and other cases even if it had changed what the purpose of the endangered species act is to preserve alternatives for the services and whether they needed to have those alternatives preserved whether those alternatives whether logging would have undercut their alternatives or not is not the issue the issue is they need to be preserved so they can consider them and that's what this lawsuit accomplished regardless of what the biological opinion did but as we said the evidence before the district court  was clearly that the biological opinion had imposed greater restrictions than were present when its infancy if the climbers application i'm sort of persuaded that the adversary has a good point that the plumbing or injunction as such didn't do any more than preserve the status quo and that is stop the law going until we decide what's going to happen so it seems to me therefore that the burden demonstrated what the court that is the informal formal private public that those issues are wrong and therefore the there's only person preservation the status quo what they claimed was an interpretation of the act was really wrong but i was foreclosed from doing that because of the nature of the issue now that it seems to me what it how it comes out is another issue which you bring up another point in addition to that on page forty four of your brief where you claim that of course the case has had an interpret important interpretation because it's now in the handbook on application of section seven conservation planning process and you attach a copy of it and ask us to take judicial notice of it how does that play out explain to me how how the  handbook the handbook says that we refers to the district court's decision in this case and says we are going to change our procedures accordingly and we're going to adopt our procedures to conform to the rulings that were made by the district court on informal consultation in that respect the this laws changed the interpretation of the act by the services it has changed the way other persons and energies in a position position of pacific lumber perceive when formal consultation begins and when informal consultation the effect informal consultation the fact that the district course written opinion was vacated does not mean that its opinion as to what the law is is any less  are raised that were important here too i mean initially pacific lumber raised the issue that section seventy doesn't apply to private actors that was an issue they raised before judge henderson and he injected it  there were two requests for a meeting from the pacific lumber foundation and another lumbering number industry wanting to intervene in the case at least one of them on this issue on the profit after issue and judge henderson rejected that issue in this in that sense this case also aided in the interpretation of the act but i'd like to go back to that preserving the status quo because i'm not sure that analysis environmental statutes like this first of all i think factually and i don't mean to belabor the point they did change the status quo but even if even if the civic lumber hadn't stopped locking in this case keeping them from logging is what the was all about this wasn't keeping things in place until something further could be done keeping them from logging is what plaintiffs contended in the district court found is what the endangered species act required there's no further relief we could have obtained other than keeping them from logging which is as you perceive a judge was this maintaining the status quo but that was the goal of the lawsuit and so simply saying it was maintaining the status quo doesn't mean you're preventing party i don't think really answers the issue of whether we prevailed here and whether we accomplished what the endangered species act was designed to accomplish that's what this lawsuit was about that's what the endangered species act was about preserving the status quo so the so the services could consider the biological opinion with the full range of alternatives available to them so i want to back up on that point unless there are other questions and i think we answered the questions about whether the order was an appealable order i believe it was long line of cases where the defendant doesn't get an appellate determination on a policeman or a injunction r t r and it doesn't affect the plaintiff's right to fees and the reason for that is a policy reason that i would ask this court to consider the reason for that is that as the courts of interpreted few shifting statutes congress felt it was more important to award fees to plaintiffs who attain  and in force the statute then to deny them because the defendant did not have a right to an appellate review of that determination that the decision should be based on the determinations that were made before the ca speculative speculation about what might have happened had the case not become moot and that those policies are very important because particularly in situations like the endangered species act where everything cannot obtain fees because it's because the case becomes moot because the biological opinion issues before the case is reviewed because the trial court fails to issue a finding of whatever happens if they cannot of change fees for enforcing the act because of those circumstances they're not going to bring these cases because these cases move on fast tracks and fast timetables and getting that kind of relief is what these cases are all about could have moved to modify or stay the t r o it into that it could have appealed the september third order which was sufficiently met all the requirements of rule sixty five it could have appealed at the close of the evidence what what what are charged after october twenty two after october twenty two one important point which i forgot to mention on the injunction in the appeal ability is there was a stipulation hendren in to win and that it was in effect that's the plenary stipulation modification entered november eighth i believe it is and it's referred to in our brief and in judge patel's opinion after that there was briefing on cross motion for judgment and here i think it's very important to recognize pacific lumber rather than appeal moved for summary judgment on the issue of whether seventy applied and the other issues they had raised at that point in time plaintiffs counsel could not simply say oops the case is going to become moot we're not going to brief it they had to file opposing briefs to sustain the victory they had won on the  the work the primary work that was done after october was the summary judgment briefing on the other hand they cross moved for summary judgment because the case had not yet become moot again seeking to reaffirm the thank you your honor i would in terms of the policy one point and that is if a temporary restraining order under the endangered species act which admittedly is of me has a very low expanded even further and much beyond what the supreme court has indicated is an appropriate measure for fifteen well beyond what the statute intended i don't believe that that the intent of congress i don't believe that the supreme court has viewed it in that way the fact that the plaintiffs here obtained a plenary injunction they maintained they got everything they want they didn't get everything they want they basically and they argued this in the motions when the civic number moved to have the case dismissed as moot they argued that the biological opinion was flawed they argued that the instrumental take permit should not be issued those speak they must get something significant here on the all they had was a temporary restraining order i know if i don't want to repeat myself but the ultimate yeshu and that is whether or not there were coho salmon present whether or not there would be that your reconcilable commitment of resources didn't occur nothing changed with respect to the habitat conservation plan and the incident will take permit because of this lawsuit if they had come and say look we filed a lawsuit that retained a temporary restraining order that resulted in a change of some consequence in this permitting process perhaps they would have something to talk about but there was no change the incident will take