oh i didn't know that if anyone is in the courtroom for the third argument of the morning we're going to have to reconstitute the panel so we'll be taking a break after this case i just thought you might be interested versus united states army corps of engineers and liddy and channel maur prevailing on the merits of their claims under section nine of the endangered species act to support a preliminary injunction against the business operations of libby and channel fleet second i'd like to address the plaintiff's argument that this court can affirm the preliminary injunction because we don't have a permit under section ten of the rivers and harbors act and third if i have time remaining i'd like to address the clearly erroneous fact findings of the district court made as part of its public interest analysis now on the first point this court held in the iran's us project case that an injunction under the endangered species act requires a showing of an eminent threat that is recently certain to occur in this case both the parties experts have toured our facility they don't spect the facility and neither party's expert is found any evidence that is the syllabi has ever caused any harm to a protected species and in this case we're talking about protected sea turtles have you finished the conservation protocol yes your honor we have we have a protocol in place there was a meeting on november the tenth two thousand and sixteen november first twenty sixteen where we've hired a ph d biologist to design this protocol the protocols modeled after one that national marine fisheries uses and its projects cold in given the possibly case but the facts from the most recent winter are in the record i'm happy to update record if you would like to know what happened or if you want to keep that out of the case i'm happy not to discuss it ok so the record shows we do have a protocol in theories of the plaintiff's expert mr mo and his first theory was that a barge might strike a turtle that is cold stunned in the water and this cold stunning phenomenon is a biological phenomenon in which a cold blooded animal like a turtle becomes physically into passive hated and unable to move when the water temperature spikes down to extremely cold levels the record shows fifty degrees fahrenheit or colder and the cold stunning phenomenon is important in this case because the published literature cited in the record shows that turtles have excellent eyesight and excellent hearing and they normally have no trouble moving away from the slow moving barges so mr mo i pocus is on situations when the turtles just can't move because the water is too cold but there's no imminent threat of harm to coldstone turtles in this case because the district court entered this preliminary injunction on march the thirteenth twenty seventeen one week before spring where do i i don't quite understand i have two questions number one is about the turtles and why would the turtles be residing in the intracoastal waterway to begin with it's a major commercial transit area and you've got a gulf of mexico and so on so i'm somewhat interested in the incidence of turtles in this major commercial transit way to begin with and my second question is are you only saying that the district court finding is in firm because at the time of the hearing it was no longer possible for the temperature to dip below fifty degrees always the questions that were you presented them there is evidence in the record that there are turtles in  the plaintiffs expert mr mo ed says he has talked to the there's a group that keeps track of the statistics of total streaming incidents and he says he has those records we asked him did you supply those records to us did you put them in your report he said no but there is evidence that there are turtles in the channel what the evidence shows is that the turtles like to inhabit the shallow water areas that's where sunlight can get down the sea grasses can grow and the turtles forage along the shorelines which is one of the reasons why we started this project because our just as you see remind me of your second question second question is is your is your challenge to the dish records findings limited to the fact that they hearing took place within days of the end of the period when it is at all likely that oregon is under around this project they have to show a horn that is both imminent and reasonably certain so on the imminence prong there's no imminent threat because we're in these war months but they also feel the reasonable certainty prong remember cold stunning doesn't even occur in a third of the winter so in a third of the winters there's there's no risk to cold stone turtles in the two thirds of the winters when cold stony happens it lasts only six to eight days on average so that amounts to two to three percent of the year so ninety seven percent ninety eight percent of the year there's categorically no risk of harm in two to three percent of the year there is a risk but we laid out in our brief all the reasons why that risk is not reasonably certain to materialize into harm to turtle and why we mitigate that risk or how we during the few days per year when there's a possibility of a risk to coldstone turtles again we don't think it's nesting in the net is the fact that the weather's not it's not cold enough and reasonably certain is the fact this is really not happening because i'm confused about something the expert report that if the turtles attempt to flee by diving and run out of water and hit the bottom they'll be an opportunity for  minute there's there's two risk that mr miller i talked about the risk of cold stunning turtles and that risk is not imminent or reasonably certain and then there's this was to help the turtles that are feeding on the monster algae in our facility and what he's saying what your question goes to that second risk and what he's saying is he sees an opportunity for a take that was his word an opportunity if three things happen in sequence if a turtle is feeding on monster algae growing on one of these morning dolphin structures as a barge comes into the facility to park  the first thing second the turtle would have to flee by diving straight down as she said so the troll goes left the door goes right the troll just retreats away there's no risk and third the turtle and its an animal that lives in the water would have to dive straight down and just smack into bottom of the channel and that's when he sees this opportunity for take a current opportunity to meet him in a reasonably certain you're on i couldn't agree more on that he said opportunity his focus was on cold study this hearing happened on the eve of winter and so people were worried about cold stunning i think the turtles are an afterthought i think harm to help the turtles are an extreme apathy so there's no reason we certain threat to these healthy turtles the other problem with that theory is he went toward our facility twice the expert in the days leading up to the hearing the two days before the hearing he went he inspected he went home he came back the next day inspected our facility why is he doing this he's looking for the most recent evidence he can use to testify against us about this threat to turtles and then he shows up at the hearing and he acknowledges what we already know because we're there every day the turtles aren't there there aren't any turtles in our facility right now for the reason that judge jones gave they don't like the industrial fleeting operations now they point to testimony or an opinion of our expert dr carruthers where he said he toured the facility and he saw algae on a few of the boats those were his words a few of the boats and so on appeal this is not what their expert said on appeal their lawyers point to that opinion say well maybe turtles from out  channel somewhere would want to come in and feed on the algae on a few of these boats but no expert said that algae on a few of these trains in boats would be enough to attract turtles into our facility their expert didn't say that our expert said maybe he we have a extremely credible expert he looked at the situation he said there's a possibility that algae on a few of these boats could bring turtles and some page fifteen of this report but he put the page on page sixteen he said turtles don't like the barges so they may very well go east of the facility and just avoid the facility altogether but whatever the potential attractants may be to bring turtles and their expert has into this facility multiple times and he's testified directly unequivocally that the turtles he's worried about are not currently there so there is no recently certain threat of harm with this theory of the turtle diving down there's also no imminent threat of harm because those turtles are even in our facility right now the chart scuse me how far issue is fleeting facility from the  to get a little closer bearing in my mind on where the exactly where the fleeting operation is located but did what what position if any do you take on the  need a complaint so that the need a complaint that they've raised it's not clear in their brief what exactly their theory is if you look at the statement of the issue and you look at page four they say we've just missed this glaring problem in the case that we don't have a permit under section ten well in a book or a decision from this court that we cite in our reply brief this court clearly held there's no private right of action to enforce section ten of the rivers and harbors act so some of the statements in their brief make it look like they're asking the court to hold that private environmental plaintiffs can go around getting injunctions against businesses on based on allegations that the businesses is violating section two and this court is not allowed that that's foreclosed by the book or a decision now some of the statements in their brief make it look like they're relying on a need to claim well they have two different nepa claims one of them is more moved than any claim i've ever seen it's a claim that the corps of engineers violated need in authorizing this construction project is now finished through a letter permission has now been revoked so we don't think that claim has any bearing they also have a claim that the corps of engineers should have exercised its in foresman authority to require us to stop operating the a p a doesn't allow review of that kind of discretionary concerned with the need to claim there's the couple of one is there not asserted against us so we haven't really joined issue on the need claims until the reply brief in this case and there's a lot more development that we could do in the district court on those claims were also they think they're not really is this party exactly but they would be taking a position had the district court ruled that they have a substantial likelihood of showing that the corps of engineers has violated federal law the corps of engineers were to file a very different brief in this court so we think that unripe and barred by the a p a i think that's laid out clearly a very thin it's far be it for me to explain how i think the case should come down or there wouldn't be any need to send more development before the district court but if you're right about the neighbor kinds that would be no need for develop that's what the development that one of the areas of development that we're interested in is how has a corps of engineers construed its own regulations we see how they construe the regulations on the briefing but we haven't been discovering them on that issue as it would have relayed here because we think a few things are important for this court to understand first we think the state of proceedings pending the court's review of the of the question of whether the dolphin morning should be removed if so how they should be absolutely revoked moorings in place i don't think we'll see what they have to say about that but it's certainly likely so why didn't why i can't since when can and a petitioner come into court and say i think the u s army corps is proceeding along in such a way that they're not going to do any on such and such a request for development or else they're going to do it wrong and therefore court i'm not i'm against them or in company which is the basis for their likelihood of success on the merits you don't you don't take a position on the injunction so the injunction is is the crux of the sect section nine complaint vacated we think the station remain in place pending the course completion of the process and last that section one claim goes away to which case then there's no proper claim left to support their suit i still don't understand why you're arguing for the state of maine in place well at the event at when this appeal occurred before the injunction occurred there was about to be a trial there is pending summary judgment motions and we don't think a trial on any issue of what the course done here makes any sense it should be administrative procedure act record review so the state alleviated that problem for us that there was going to be a trial that potentially assessed the claims against the corps and that's not right under the should go through what it's doing now and we don't want a district court order or the interferes with any time somebody else comes in and says we want to build something in that channel and we're filing a corps permit and some group comes forward not liking that and files various complaints they can get in a district court and the district court can say well i have jurisdiction but i'm going to stay the proceedings until the court does something what fleete proposes to do is vacate a district court injunction in their bio allow the use of indisputably uncommitted and therefore illegal structures that is not the plaintiffs saying it that's the district court's conclusion but it is also the corps of engineers conclusion you know what we all have all of us on the bench have life tenure and status under article three of the constitution that we just can't act because we don't like something we have to act only if someone points to a violation of law that we can adjudicate yes your honor it is well established and i quote from the d c circuit here that judicial power to enforce nipple extends to private parties where non federal action cannot lawfully begin or continue without prior approval of a federal agency were such nonfederal envies to act without the necessary federal approval they of engineers concerns the scope of the operations the massive full scale sweeping operations that have never undergone any need to review at all one one permanent it's been vacated and you have another permeating process that is currently underway with no final reviewable agency action and and also no environmental impact statement for us to review correct that claim is not right that's engineers statement of findings in revoking the permit revocation of the l o p means that the morning dolphins constructed by lack fleet pursuant to the l o p are no longer authorized and constitute obstructions in violations of thirty three u s c section four  have said that and you didn't do that with respect your honor we certainly did the district court did not make clear fact finding error it took it did its job in weighing competing expert testimony on the impacts to se troubles and using its discretion to weigh one competing one expert's testimony over the other the expert that it credited has thirty some odd years of experience and is in fact sometimes hired for endangered by the fleet's expert and they ask you to forget the turtles all right if there were no turtles with their friends the channel still have an objection to what you refer to as a massive morning operation yes of course you and that's because there was a clear violation of need in the issuance of the permit that's been acknowledged by the corps of engineers when it told of the district court that was an inappropriate process and they weren't there weren't the barges hunters people who have you ever used recreated and used that that lady and channel state scientific area a highly sensitive environmental area that they don't want all these barges there oh of course not these barges create massive through their ships come through there and what they don't do and what they are doing only illegally after the permit was revoked was sleeting in a massive scale that was never permitted any part of the fleet out on the shoreline well the permit one of the reasons why it was a vote allowed four per for the essential in then the fleeting company started morning twelve and the reason kind of gets to the rub of the case and the reason why they lost their permit because they're not simply simply tying up barges as a temporary matter before they gain a berth at the port of corporate corpus cristi three hours away what they're doing is housing them they're taking them into custody with all the chemicals with all their oil drums with their frack sounds with the cleaning agents and stacking them twelve deep unpermitted and keeping them there for days at a time as many as ten days not right up until until they're fully serviced until they complete whatever fleeting services which the corps has never  impacts of at all it's doing that right now and so all this all that injunction did was say ok in light of the fact that you were saying you as a private  standing to enjoin the operation of another private group because the army corps didn't comply with need what is your best case but at the d c circuit cases that i recited to the court earlier foundation on economic trends versus heckler seven fifty six f second one forty three sierra club versus army corps of engineers eight zero three f three d d c circuit twenty fifteen sorry f three d at forty three davis versus airport neighbors alliance all of those cases all of them recognize the court's sound equitable authority to enjoying unturned and therefore illegal activity where the new process has not been done at all and the ne process this is perhaps the strongest case imaginable for such a claim because in all of those cases what the courts had to do was find a likelihood of success and i think that situation  the i mean if it were so clear cut is that again you didn't have to put all the focus on the sea turtles in your hearings but here you have a permit was in existence you filed suit and the corps took a step back within a couple months the corps said we're going to review this right crypt why are you winning at that point because the the activity the causes of the harms never stopped disagree i've ever cited several cases saying that courts clearly lack clearly have the equitable forty two enjoying third party conduct that was permeated by a flawed need a process which we have established in the record in this case by the court and i urge the floor to reach carefully the statement of findings the core issue in revoking the permit but let's let's take a further step exacting it's important to talk about the need for policy and the proper order of things port that are in storage as opposed to full service fleeting for days at a time and stacking three times as many barges at a time and so what this court would do if it were to vacate the injunction is reward that bad conduct it would tell honest brokers people who try to apply for the to for permits using honest information truthful disclosures about the scope of their operations that would allow the court to conduct in the review with the right information and here the court found and i quote the where the harms standard merely from the construction and i think this is the rub of the fleets argument why it's wrong they say we only need a construction permit absolutely false the rivers and harbors act of course prohibits structures or review before they're supposed to begin before they're supposed to begin that's the key concept here occur because of the operations the massive scope of the operations it's not the merely tethering of the of it's not the eighth circuit case that we said in our brief sierra club versus us army corps of engineers where i'm going fill activities can be enjoying but again each of those cases says so and vs army corps of engineers direct because that is the object of the injunction in those cases enjoying private party activities because they were unpermitted in there by a legal or that's behind you know a already completed project when there was when it was a result of an improper process so i think was a the just of what the district was saying it probably wasn't in the right spot but asked a public interest and balancing of the harms fleet has very weak argument here it says we're going to lose our investment and we're necessary to provide bird flu thing while bird operations have tailed off dramatically that's established in the record there is no pressing need for them to occur i mean there's an argument to be made for anybody is an investor entrepreneur that put money into a project in the united states so you can't just say you know just wave that a way and you do have to balance it sure with the other and and that but they're wrong those twenty nine employees work not just for the feeding companies some of them at least work on different a different i don't know they didn't put that evidence in the record here ok i see that amount of time thank you very much to construct a pleading area your request is approved by this letter a provision the corps of engineers approved our request to construct not to operate to construct and to construct a fleeting area not a mooring area of the right original they don't have the right to give operational permits they issue construction permits and that's just not just but the statute says it's not just what the regulation says it's not just what we say that's how the corps of engineers interpret this own jurisdiction they permit the structure they permit the operations so they permit of these structures and they permit a fleeting facility the other side says we made these misrepresentations during the permian process we didn't make any misrepresentations the corps of engineers knew exactly what it was doing what the corps of engineers said complaining about the number of barges inflated out there saying twelve they're saying within twelve so we have made mistakes i want to be clear with the court about that one of the mistakes we made is for a couple of weeks when we had only some piles in place we more twelve why we don't do it anymore and somebody wants to enjoin us for you can't more twelve why we're fine with that we don't do that anymore so they talk about the whole service splitting operation the record doesn't show any difference between all service cleaning is a term they like to use and just regular fleeting the record shows that fleeting involved are just parking for days at a time there are tug crews there are barge crews in the industry practices those people need food they need transportation and we never thought that causing that giving a sandwich the barge cruise would cause this much turmoil the people are staying with they need fuel we give them fuel the the corps of engineers permit a fleeting facility and that's all we've done on these misrepresentations on page one thousand and twenty of their brief a list of all these bad things that they say the corps of engineers said about us they have snippets from the corps of engineers revocation letter and findings with all of this editorial embellishment of their lawyers and on the corps of engineers and never said we misrepresented anything what they said is the stated purpose and need for a project didn't accurately reflect what we did and that's carefully worded language the stated purpose and need refers to item nineteen in our initial permit application the corps of engineers never said that over the course of the seven month doesn't go into detail about all these services so what the chorus saying is all these other disclosures you made during the permanent process you should have put in item one thousand because the corps of engineers internally uses item nineteen to determine the scope of review for the permit and a coordinate with other agencies so there was a miscommunication between us and the corps that doesn't mean we misrepresented anything why do those cases not support the possibility of an injunction for a couple of reasons they have not  single case in which an appellate court affirms an injunction against a completed facility they have cases were were upheld talk about it and they have cases where there's an injunction issued while a project is in development the cases from this court the springer the by liberty case the original park homers socialism case florida wildlife federation all hold that once the the syllabi is complete there's no more need injunction to be given now they say those cases are talking about construction only they're not talking about destruction and operation completely incorrect look at the springer case springer vs us marshall the claim there was a need for violation in the approval of the project and now the problem is complete court we want you to enjoin the operation of the syllabi and this court said wait a second i don't think there's a basis to affirm underneath in his argument he said we're asking the court to allow us to operate without a permit they need to show a substantial likelihood of success on the merits to get a preliminary injunction judge as i think is was your point they have to show a substantial likelihood of success under the current case they don't have a private cause of action to enforce section ten of the rivers and harbors act that is the course job the court hasn't foresman authority the court has discretion and the cork in it for section as it sees fit it's not for private environmental plaintiffs to go around in joining businesses the courts chooses has chosen to work with us and allow them or it's a stay in place knowing that we're operating while the poor reviews are permit application and are removal alternatives they will make a decision they haven't done so yet a say amount of time would ask the court to vacate the injunction if there are no more questions