please the court i'm katie kovacs appearing on behalf of the departments of commerce and the navy with me at counsel table is bob smith from the navy office of general counsel and if i may i'd like to reserve five minutes of my time for rebuttal the question in this appeal concern the interaction of the endangered species act in the marine mammal protection act and with the court's indulgence i'd like to take just a minute to explain how the regulatory process works here because i think it puts all of our arguments into perspective and will make everything clear the navy applied to the national marine fisheries service under section one zero one a five day of the marine mammal protection act for the issuance of a rule to govern for five years the unintentional taking of marine mammals incident to the the five year rule concluding that the navy's application met the requirements of the m m p s a but that five year rule did not authorize the navy to take marine mammals instead it set forth a framework and required the navy to come back list it was only in the annual supplemental biological opinions that nymphs included to take authorization parallel to the take authorization under in the l a ways under the m m p looks like we're we're authorization to take risks the navy could not operate the sonar at that point without facing liability under section nine of the endangered species act no take the car but they could do it while facing liability that's different from not be deployed but the question is what's going to happen what's the result of the toyman what happens for the mammals and and what do we do with the incidental taking that the whole dialogue seems to be moving that upstream before you go for the l a l a way now i don't know whether that influences the other way i'm not smart enough to figure that out at this point but it sounds like what we're looking for is more dialogue upstream not putting it in the water because the sanitarium i put the water go and put it in we'll deal with it later it's the idea that moving the dialogue relative to the incident taking is moved away upstream is that what's happening here i mean the law requires that i'm not sure what you mean by a stronger game later consultation between the parties  and the fisheries and all relative to the takings should probably if you move that dialogue upstream again in other words to get into dialogue with regard to the i t a s it may have an influence on how the way another another key another i think central point of the n r d c is argument is their argument that the incidental takes it into this somehow related to the jeopardy analysis now it's not the two are independent and the lack of an i agency's hands without adding any protection to listed species i think one of the keys here is that this approach does not allow the navy to harass any more whales than it would under their proposed if it didn't change anything for the animals it didn't change anything for our d c and our d c did not experience wasn't exposed to any harm its interest in protecting listed species was not harmed by failure to permit important to do much more likely after going to actually doing it but it's important to recognize that at that point it was not reasonably certain that the navy would go ahead at all much less where and when and how the navy would go ahead contained in the biological opinion it contained in the final small take permit under every single deployment possible the point of scenario analyzed financed and viney and by the navy the taking of endangered species of the need biological opinion was finalized before the letter of authorisation were issued i would agree with you that would be a rightness problem but one of the misconceptions of the government's standing argument in particular i think is that they confuse the nature of our injury of a program manic biological opinion moving on to that second question i don't think there's much doubt that the small take authorization that is the final rule the regulations published in the federal register under section one hundred one of them remember tech next in fact met the requirements for authorization as set forth in the endangered species act we know that for several reasons you know that first because section one on one of the n p a contains a number of requirements most germane here the requirement that the regulations be published in the federal register after notice and an opportunity for comment and in this case the final rule but not the a there referring to the letter of authorization the statutes clearly referring to the small take permits that are that are published in the federal register and in fact if you look at the final itself that small take  authorized by section one zero one of the marine mammal protection act that is the publication of small take regulations in the federal register and in fact the small take regulations that i examine the effect of l f this deployment over its entire five year period and across seventy five percent of the world's oceans and effectively what that means and that gets to how we were injured in this case and why we have standing is that there is no trigger for the automatic mandatory rhenish ation of consultations between navy indians that covers the entire deployment period that was my inquiry earlier is that what the difference here with an i d s or no i d s is consultation what i was thinking at the very about how to approach that very question over the weekend and it occurred to me that if that this court doesn't actually have to reach the question of what the sole purpose of an i d s is or directly address that language in arizona calibers the question right yes and in fact we did and we want that claim yes ok so what's the problem the problem was is that there were is that he failure to include a broader i t s for the entire program was also illegal because those two questions to provide a safe harbor i just continue to believe that the answer that question is negative and we know it's a negative because the court was very confused the congress is very clear if you look at that if you look at the legislative history that they for the first localized if you will hello and i think yes it was issued and there's a problem you would then start all over and stop the program going forward and you have to start again and say we're now back at the  trigger you want so that you can have an overall guidance on the whole program not just go on and this happens in our in our out cases or lumber cases all the states question whether you can do that a local contractor cut something or whether going to worry about the whole force such a document from your perspective and say well they didn't talk about using sonar in this way so they need to redo that for these animals and so on well it would depend on the ice yes of course i mean obviously if we thought the ice  have a cause of action to challenge it but that's not what's at issue in this case what's at issue in this case is whether we were injured by the lack of an i d s not whether or not names would have would have come up with an adequate ideas but it wouldn't have been terribly difficult for nance to come up with an adequate i d s against and the navy had very precise estimates about the amount and percentages of marine mammals that would be taken by the program as a whole in fact the small take permit issue in this case for marine mammals  look at standing in the i d s issue that the court said go back and this is what i'm going to do i'm going straight you go back and figure out the terms you all agreed you may have stipulated and put in there that it could be a field but you injunction in fact it has been modified once already this year and if we do win this case the markets usually may or may not have to do with the legal issue before us what if what if we reversed the district court that gives us grounds to go back to the district court to modification of the injunction i don't know whether my clients would ask us to do that or not at this point but if we win on this issue on appeal there's not a whole lot left that the injunction is grounded on because this the court is aware from the doesn't have standing to challenge it takes away it's two things another court is struggling to find some on the ground impact and there could very well be on the ground impact in this case but it's also important to recognize that there need not be an on the ground impact it's enough for there to be a declared a declaration by the district court that my client violated the law and if we win the subpoena all that declaration is vacated well that is enough for the parties are ordered to meet and confer forthwith on the precise terms of a permanent junction consistent with this opinion the only thing that happened here was a permanent injunction the opinion was only the basis for the permanent job permanent junction is usually the discretionary standard counsel says you don't care it's not going to change it you're going for vindication the fact that you were found to be wrong in your opinion if you only issue here is a permanent injunction your honor i think i disagree i think the recognize if we do it's going to shut down your operations when you start stipulating on the basis of that opinion you've got to go forward and you're operating under the provisions that are permanent injunction if you're not asking to change that if you want to continue to operate because all the judgments as you know the judgment only is a formality to get you up here says order that the final judgments that are pursued through fifty eight consistent with the court's august twenty six marvelous i think i can ask you a question of clarification you indicated that something about modifications of this permanent juncture were under way i think take it this thing is a living animal you're working with a permanent junction and you if you go forward with whatever we hear from you on jurisdiction you're going to be talking about the opinion of a district judge you're not going to be talking about the stipulations that you me with regard for ties germs of the permanent injunction and that you think i'm going to be explaining why it is when there are several grounds for an injunction you know that it gives me scuse me i'm saying what you're going to be talking about is what the district judge did in your opinion because you created the permanent injunction with your co on the other side on the specific terms in accordance with the opinion so we're going to be looking at the opinion ok right i guess on missing the point of a question your honor i'm sorry if you dismiss this case you can do when something is opinion but is not included in the court's actual drive and so that might have some bearing on that's a public opinion or oh yes contend that and i ts was necessary in part to provide a trigger to reinitiate consultation as i explained before at that point at the program out of the level the nabi could not take action and nothing changed so there was n r d c said it was clear that takes would occur if the sonar were used there's no there's no question we agree that the sonar would cause harassment of animals within the within the definition of harm under the e s a but until the l a way issued could not be reasonably certain that any given species were taken and so it could not but you you do agree with doesn't just protect the navy but it requires the navy to take action to protect the species it cannot do that it can't require the navy to take those actions until it knows with reasonable certainty which will be i