[00:00:01] Speaker 00:
Case number 14-5301 at L. Public Employees for Environmental Responsibility at L. Appellants.

[00:00:08] Speaker 00:
Town of Barnstable, Massachusetts, 10CB 1073 at L. Richard Begay, Appellant.

[00:00:14] Speaker 00:
Christopher Burtsey at L versus Abigail Ross Hopper, Acting Director, U.S.

[00:00:18] Speaker 00:
Bureau of Ocean Energy Management at L.

[00:00:21] Speaker 00:
Mr. Sharp for Appellant Alliance to Protect Antucket Sound.

[00:00:25] Speaker 00:
Mr. Bixenstein for Appellant Peer.

[00:00:27] Speaker 00:
Mr. Gunter for Federal Appellees.

[00:00:29] Speaker 00:
And Mr. Marrero for Intervenor Keith Wayne Associates LLC.

[00:00:37] Speaker 07:
I will address the navigation issues involving the Coast Guard and issues involving the failure of the Department of Interior to have information critical to its determination to improve this project.

[00:00:55] Speaker 07:
The Coast Guard Marine Transportation Act was passed in 2006 specifically to address the issues raised by this project.

[00:01:03] Speaker 07:
Section 414 requires the Coast Guard to specify terms and conditions that the Commandant determines to be necessary to provide for navigational safety with respect to a lease or a wind farm and then type of farm, and to prepare terms and conditions for each alternative to the lease considered by the Secretary.

[00:01:25] Speaker 07:
The Coast Guard did neither of these things.

[00:01:29] Speaker 07:
Now, the Coast Guard admits in its brief at page 27 that the only document relevant to assessing the 414 issues is the 2007 Terms and Editions Memorandum.

[00:01:42] Speaker 07:
That document, with respect to Coast Guard determination on navigational safety, says, and I quote, this determination will be made only after the analyses in subparagraph 4D and elsewhere throughout this document are completed.

[00:02:01] Speaker 07:
Quite evidently, they did not make that determination in 2007.

[00:02:06] Speaker 07:
Six months later, in the issues paper prepared by the Coast Guard,

[00:02:13] Speaker 07:
They stated, and again I quote, we might get questioned about MMS's statement regarding impacts on navigation because we've not in fact evaluated the impacts on navigational safety.

[00:02:25] Speaker 07:
That appears at 1673 of the Joint Appendix.

[00:02:29] Speaker 01:
How are we to construe the language in the statute that says that the commandant shall specify

[00:02:39] Speaker 01:
quote, the reasonable terms and conditions the commandant determines to be necessary.

[00:02:44] Speaker 01:
So Congress clearly gave the commandant discretion to determine what he or she believed would be necessary.

[00:02:54] Speaker 07:
I agree, and Judge Wilkins had the commandant made that determination, it would probably be entitled some deference.

[00:03:00] Speaker 07:
But on this record, he never made that determination.

[00:03:04] Speaker 07:
And the document that was supposed to have done so, quite candidly said the determination had not been made.

[00:03:11] Speaker 07:
subsequent documents in the record by the Coast Guard, including a statement, a candid statement, I might add, by the Coast Guard's project director, this is Lieutenant Commander Detweiler, in response to the memo I just mentioned said,

[00:03:29] Speaker 07:
The Coast Guard may need to provide an actual safety of navigation determination, i.e., safe with these mitigating measures or absolutely no way, no how is this thing safe no matter what Cape Wind provides.

[00:03:43] Speaker 07:
Again, perhaps that doesn't represent his views of the safety of the project, but it certainly does quite clearly establish that they hadn't made the determination that the statute required.

[00:03:53] Speaker 05:
The second...

[00:03:57] Speaker 05:
We certainly did provide terms and conditions, some of which were applicable right at the time and others which were sort of forward-looking in the way that conditions can be, and that was that there will be further studies and further looks and further input from the Coast Guard if needed for safety.

[00:04:15] Speaker 05:
Why doesn't that suffice as terms and conditions?

[00:04:19] Speaker 07:
Well, I suppose at one level, there are terms and conditions, but I don't think they reasonably can be construed as terms and conditions that provide for navigational safety.

[00:04:27] Speaker 05:
Why not?

[00:04:27] Speaker 05:
They set out some baseline requirements and then essentially made this an ongoing assessment that at every stage, it had to be constructed in a manner that was going to be consistent with navigational safety, and further reports would be made to the Commandant or to the Coast Guard.

[00:04:46] Speaker 07:
The statute contains a deadline?

[00:04:49] Speaker 07:
The terms and conditions had to be specified?

[00:04:51] Speaker 05:
No, but the conditions can be forward-looking.

[00:04:54] Speaker 05:
The conditions had to be laid out at that time, but that doesn't mean they had to stop.

[00:04:58] Speaker 05:
I mean, it would almost be silly for a statute in this setting to say, we're only going to look at that information that comes in before the draft environmental impact statement, and we will never look at anything else.

[00:05:09] Speaker 05:
It seems to me that's what conditions mean, is forward-looking limitations.

[00:05:14] Speaker 07:
Well, I think the statute must contemplate that certain terms and conditions be imposed on Cape Wind to achieve navigational safety.

[00:05:21] Speaker 05:
And some were.

[00:05:22] Speaker 05:
I mean, you don't dispute that a number were.

[00:05:24] Speaker 07:
There are some minor things, but by the Coast Guard's own admission, they didn't provide for navigational safety.

[00:05:29] Speaker 07:
There's never been any amendments to the terms and conditions.

[00:05:31] Speaker 07:
There's never been any new terms and conditions specified.

[00:05:35] Speaker 07:
So the only thing we have to go on is the 2007 document, which

[00:05:40] Speaker 07:
which the Coast Guard admittedly says doesn't entail an evaluation of navigational safety.

[00:05:48] Speaker 07:
It's very hard for me to therefore conclude, Judge Malepti.

[00:05:51] Speaker 07:
Going forward, they may have, I don't know, other authorities that they might impose on mariners that might address safety issues.

[00:06:00] Speaker 05:
That's no doubt.

[00:06:01] Speaker 05:
The statute is set up to make this determination at a very early stage.

[00:06:06] Speaker 05:
And I assume that's why Congress said you can impose both terms and conditions.

[00:06:10] Speaker 05:
And that is put out there.

[00:06:15] Speaker 05:
recommendations you have for what needs to be done to make this safe at the early stage before there's even a draft environmental impact statement.

[00:06:25] Speaker 05:
And then going forward, you can have conditions.

[00:06:28] Speaker 05:
And if they determined that something more was needed for safety, my bet is that they would get it out and it would be done.

[00:06:37] Speaker 07:
I presume at least one reason that the deadline was imposed, the terms and conditions were subject to public review and comment in connection with the NEPA compliance.

[00:06:48] Speaker 07:
If, as you suggest, they could be done any time thereafter, they would never be subject to public scrutiny.

[00:06:53] Speaker 05:
No, that's not true.

[00:06:54] Speaker 05:
You can say, look, why did you put that condition as a forward-looking basis?

[00:06:57] Speaker 05:
You could have that information right now, right?

[00:07:00] Speaker 05:
So they've done that.

[00:07:02] Speaker 05:
But at some point, this had to be, by its very structural design, the first look in a very long process.

[00:07:09] Speaker 05:
I mean, it's not your position that the Coast Guard, after it issues this report, washes its hands and walks away, correct?

[00:07:16] Speaker 07:
No, it's not.

[00:07:17] Speaker 07:
But it's not also we would disagree with the government's position that Congress must be contemplating that the issuance of terms and conditions could be done any time subsequent to the deadline of the statute.

[00:07:29] Speaker 05:
Well, they issue the conditions by the deadline.

[00:07:31] Speaker 05:
It's just compliance with them by Cape Wind.

[00:07:34] Speaker 05:
It was a forward-going basis.

[00:07:36] Speaker 05:
And then if something showed up, of course we would want the Coast Guard to react.

[00:07:39] Speaker 05:
I can't imagine that Congress would mean the Coast Guard couldn't react if a subsequent report revealed a need for safety.

[00:07:46] Speaker 07:
That 2007 memorandum also required Cape Wind to do studies on navigational risk and radar assessments were done in 2008 and 2009.

[00:07:56] Speaker 07:
There were, again, as a result of those reports, the determination by the Coast Guard that it was a moderate effect

[00:08:02] Speaker 07:
on navigational safety.

[00:08:03] Speaker 07:
With respect to the radar report, it said it would substantially interfere with the ability of vessels within the wind farm to detect vessels without.

[00:08:12] Speaker 07:
But there was never any further condition or measures imposed by the Coast Guard after those studies were done.

[00:08:19] Speaker 05:
But that argument is not that they didn't comply with the terms and conditions provisions of the statute.

[00:08:23] Speaker 05:
Maybe you think it was an unwise decision by the Coast Guard not to impose additional requirements.

[00:08:30] Speaker 05:
But that's a very different argument than the argument you're making here.

[00:08:33] Speaker 07:
Well, if no more was required,

[00:08:37] Speaker 07:
in the 2007 memorandum where the Coast Guard said it couldn't determine navigational safety and that it couldn't determine what were necessary until studies had been done and it did nothing after that.

[00:08:47] Speaker 07:
And this statute is a fairly hollow mandate because there is nothing that has been accomplished by it other than some minor things like ladders and lights on turbines.

[00:08:58] Speaker 01:
What do we know about

[00:09:00] Speaker 01:
Congress's intent in requiring this deadline 60 days, at least 60 days before the draft environmental impact statement?

[00:09:10] Speaker 07:
I'm not sure that the legislative history has anything specific on that, but I think the assumption that tying it to the environmental impact statement suggests that whatever the Coast Guard did be subject to public comment review in connection with the environmental impact statement.

[00:09:28] Speaker 01:
And so I guess your argument is that your clients are prejudiced by these subsequent studies not having been done and taken into account before the draft EIS was completed so that you could comment on all of it.

[00:09:50] Speaker 07:
I think to this day we still don't know whether this project has significant threats to the navigational safety.

[00:09:57] Speaker 07:
There is certainly no consideration by the Coast Guard of relocating any of the turbines.

[00:10:02] Speaker 07:
They have a buffer zone from the shipping channel, which goes very close to the turbines.

[00:10:07] Speaker 07:
All of which, I think from legislative history, are fairly within the contemplation of Congress when they pass the statute.

[00:10:14] Speaker 07:
In fact, what the Coast Guard says is if they discover navigational safety issues in the future, they have tools in their toolbox to impose restrictions on mariners.

[00:10:23] Speaker 05:
I'm curious about your theory that Congress wanted public comment on the Coast Guard's terms and conditions.

[00:10:33] Speaker 05:
What is your basis for that?

[00:10:35] Speaker 05:
And what is it proud of you?

[00:10:36] Speaker 05:
Because the public's going to comment on the Bureau's environmental impact statement.

[00:10:41] Speaker 05:
But the Bureau cuts and pastes whatever the Coast Guard says as terms and conditions.

[00:10:45] Speaker 05:
It doesn't have the right to fiddle with them one way or the other.

[00:10:48] Speaker 05:
And nobody's submitting comments.

[00:10:50] Speaker 05:
There's no obligation for the Coast Guard, as I read it, to engage in notice and comment back and forth with the public about its terms and conditions for safety.

[00:10:58] Speaker 05:
I think Congress thought they were the expert.

[00:10:59] Speaker 05:
They would say what needs to be done.

[00:11:01] Speaker 05:
and it would get put right into the lease by the Bureau.

[00:11:07] Speaker 05:
So why would they want public comment on... What is your basis for the public comment theory?

[00:11:12] Speaker 07:
The timing, keying it off the issuance, the draft EIS, and the fact... But there's no mechanism, there's no procedural mechanism for comments back and forth with the Coast Guard.

[00:11:23] Speaker 05:
Does the Coast Guard have an obligation to respond then to the public comments?

[00:11:25] Speaker 07:
The Coast Guard was a consulting agency in the comment.

[00:11:28] Speaker 05:
Did it have a legal obligation to respond to public comments, or was the Bureau supposed to respond, even though it's not the one making the decisions here, it's just cutting and pasting?

[00:11:37] Speaker 07:
I'm not sure, Judge Malletta, I can answer that question.

[00:11:39] Speaker 07:
The terms and conditions were included in the draft EIS.

[00:11:44] Speaker 07:
The Bureau of Ocean Energy Management asked for comments from the Coast Guard.

[00:11:49] Speaker 07:
The Coast Guard publicly responded and participated with the Bureau of Ocean Energy Management in all public meetings that discussed the EIS.

[00:11:56] Speaker 07:
So they were available to address all those issues.

[00:11:59] Speaker 07:
I don't believe that is mandated by the Coast Guard Marine Transportation Act.

[00:12:04] Speaker 07:
I think it's probably common procedure under NEPA

[00:12:08] Speaker 07:
where the lead agency employs consultation with an expert agency to have those experts on hand.

[00:12:17] Speaker 07:
Let me quickly turn to the second argument, just to add on the alternatives.

[00:12:23] Speaker 07:
The Coast Guard took the position that they didn't have to do any terms and conditions alternatives, because when the statute said alternatives considered by the Secretary, Congress really meant alternatives proposed by Kate Wind.

[00:12:35] Speaker 07:
So the terms and conditions memorandum says that they would do terms and conditions will be developed and provided separately.

[00:12:43] Speaker 07:
Should an alternative to the proposal referenced

[00:12:47] Speaker 07:
above Baltimore to be submitted to Secretary of Interior.

[00:12:50] Speaker 07:
Well, they never did any terms and conditions for any alternative.

[00:12:55] Speaker 07:
Those alternatives, therefore, never had the navigational safety element when they were considered.

[00:12:59] Speaker 05:
How do we know which alternatives?

[00:13:02] Speaker 05:
I mean, there could be a gazillion alternatives.

[00:13:04] Speaker 05:
It could be a never-ending process that couldn't possibly be completed in the time frame Congress says.

[00:13:09] Speaker 07:
The alternatives, or alternative locations for this wind farm,

[00:13:13] Speaker 07:
were identified by the Army Corps of Engineer in 2004 when they had authority over the project.

[00:13:19] Speaker 07:
They were identified in the scoping memo that the Bureau of Ocean Energy Management issued 15 months before the

[00:13:29] Speaker 07:
terms and conditions, and I will.

[00:13:31] Speaker 07:
So the alternatives that were considered by the Secretary were clearly identified.

[00:13:35] Speaker 05:
What does it mean, considered by the Secretary?

[00:13:37] Speaker 05:
Because there could be all kinds of alternatives that would get in and wouldn't, you know, last a minute.

[00:13:41] Speaker 07:
The principal alternatives considered by the Secretary are those that she is mandated to consider under the National Environmental Policy Act.

[00:13:46] Speaker 05:
So you think that the NEPA alternatives is what the same alternatives under this statute has that same meaning?

[00:13:55] Speaker 07:
I don't know if they're co-extensive, but clearly they're alternatives that were considered by the Secretary.

[00:13:59] Speaker 05:
Well, I'm actually really trying to understand what your view is of the word alternatives.

[00:14:04] Speaker 05:
in the statute.

[00:14:05] Speaker 05:
Does it mean the same thing as NEPA?

[00:14:08] Speaker 05:
Congress didn't say that.

[00:14:09] Speaker 05:
It certainly could have because it referenced the environmental impact statement.

[00:14:13] Speaker 05:
Does it mean we got a proposal from the Coast Guard that it means formal proposals?

[00:14:20] Speaker 05:
You have your arguments against that.

[00:14:21] Speaker 05:
I'm just struggling to understand what the proper definition of alternatives is and why we shouldn't defer to the agency's definition.

[00:14:29] Speaker 07:
I think it means each alternative, alternative site for wind farm.

[00:14:33] Speaker 07:
that was considered by the Secretary of the Interior.

[00:14:36] Speaker 05:
Why just sites?

[00:14:36] Speaker 05:
I mean, if we're going to do, it doesn't say alternative sites, it says alternatives.

[00:14:39] Speaker 07:
So couldn't it be every design shape, every... Alternative, the lease, easement, all of those had a site.

[00:14:47] Speaker 07:
So the proposal that Kate Wynn advanced had a location and horseshoe shoals and then tuck it down.

[00:14:54] Speaker 07:
the alternatives considered under NEPA by the Secretary.

[00:14:57] Speaker 07:
Some were located in Nantucket Sound, some were out in deeper oceans, some were north, some were south.

[00:15:02] Speaker 07:
But each was considered and rejected by the Secretary of Interior as part of its EIS compliance process.

[00:15:08] Speaker 05:
And then their answer is, are comments applied to all of those?

[00:15:13] Speaker 07:
That kind of fits with your theory that the comments were too generalized to... They said that the terms and conditions they issued for specified for the proposed site

[00:15:23] Speaker 07:
were equally applicable regardless of location.

[00:15:26] Speaker 07:
So whatever alternative might have arisen, those terms and conditions would apply.

[00:15:32] Speaker 07:
Which seems a strange claim by denying that there was any difference in navigational safety depending on location, seafloor, water depth, ocean currents, or all the other things that might vary from site to site.

[00:15:46] Speaker 07:
So I think that's an implausible explanation.

[00:15:52] Speaker 05:
So your definition is NEPA alternatives?

[00:15:55] Speaker 07:
My definition is any alternative considered by the Secretary for any reason, she did consider them under NEPA.

[00:16:01] Speaker 07:
So at least the NEPA alternatives, if there were some other reason for the Secretary to consider alternatives, those would have been relevant.

[00:16:08] Speaker 05:
And is the Secretary supposed to communicate in advance to the Coast Guard exactly what those alternatives are?

[00:16:14] Speaker 07:
She did in fact do so on a number of occasions.

[00:16:18] Speaker 05:
I'm trying to think how this was Congress envisioned this alternatives thing asked.

[00:16:24] Speaker 05:
And that was the Secretary would say, here's my alternatives.

[00:16:27] Speaker 05:
Give me your navigational assessment.

[00:16:30] Speaker 07:
In fact, the alternatives considered underneath them were outlined by the Secretary.

[00:16:36] Speaker 07:
They were sent to the Coast Guard.

[00:16:38] Speaker 07:
And the Coast Guard was specifically asked for their comments on those alternatives.

[00:16:44] Speaker 07:
Coast Guard never provided any navigational safety comments on those alternatives.

[00:16:49] Speaker 05:
And what would the remedy be for that at this stage?

[00:16:52] Speaker 05:
What would the remedy be for that violation at this stage?

[00:16:55] Speaker 07:
Well, it seems to me the remedy is that the Coast Guard did not do what Congress directed it to do in its terms and conditions or arbitrary and capricious in order to be invalidated.

[00:17:04] Speaker 07:
Since those terms and conditions become key elements of the Bureau of Environmental Management lease, it seems to me that it also invalidates that lease.

[00:17:13] Speaker 05:
That's not what we did in the Barnstable case, where we had a similar issue about FAA.

[00:17:19] Speaker 05:
safety recommendations.

[00:17:21] Speaker 05:
There we just vacated the FAA determination, but didn't affect the lease or any of the other activities by the Bureau.

[00:17:29] Speaker 07:
I would respectfully suggest that if in that case there was no valid hazard determination by the FAA, that the Bureau of Ocean Energy Management documents that were dependent on that no hazard determination would be subject to challenge.

[00:17:50] Speaker 07:
The law required that it have an automatic determination.

[00:17:54] Speaker 05:
But that wasn't the remedy that we applied in that case.

[00:17:56] Speaker 07:
No, because at the time that came before this court, this project had not been fully green-lighted yet.

[00:18:03] Speaker 07:
So that was an issue that still had time to be resolved and was resolved on remand and went back up to this court a second time before we got to this point.

[00:18:14] Speaker 07:
So I think it raises a similar issue.

[00:18:21] Speaker 05:
All right, thank you.

[00:18:23] Speaker 05:
We'll give you some time for rebuttal.

[00:18:29] Speaker 03:
Good morning.

[00:18:38] Speaker 03:
The peer plaintiffs have raised two narrow but important issues relating to compliance with the

[00:18:45] Speaker 03:
federal wildlife protection statutes, one under the Endangered Species Act, one under the Migratory Bird Treaty Act.

[00:18:52] Speaker 03:
The Endangered Species Act issue involves the Fish and Wildlife Service's consideration of a measure, perhaps appropriately referred to as a feathering measure, that was designed to limit the operation of the turbines during very narrow periods of time.

[00:19:08] Speaker 03:
It would be at greatest risk to rosea terns and piping clovers, the two listed species,

[00:19:15] Speaker 03:
that the service was concerned would be affected by this first of its kind project and would be affected by 130 massive spinning turbines.

[00:19:27] Speaker 03:
And what everyone recognizes is a habitat used extensively by migratory birds and specifically by these two bird species.

[00:19:34] Speaker 08:
Do they summer there?

[00:19:35] Speaker 08:
They don't nest there, do they?

[00:19:38] Speaker 03:
I think they do cross over Nantucket Sound, and I think they have nesting nearby, but they certainly used it as a migratory route.

[00:19:49] Speaker 03:
And there is, I think, no dispute that the two species are present in the action area.

[00:19:55] Speaker 03:
And the service biologists concluded that, particularly during migratory periods,

[00:20:00] Speaker 03:
where there are conditions where the birds have a hard time seeing the turbines, particularly nighttime conditions, as well as... Do they migrate at night?

[00:20:10] Speaker 08:
Excuse me?

[00:20:10] Speaker 08:
Do either one of those species migrate at night?

[00:20:14] Speaker 03:
I think they both migrate at night, Your Honor, is my understanding.

[00:20:17] Speaker 03:
Mm-hmm.

[00:20:17] Speaker 03:
And that was why the service developed those conditions for both of those species.

[00:20:20] Speaker 03:
I think the concern was somewhat greater for rosea terns.

[00:20:23] Speaker 03:
Yeah.

[00:20:23] Speaker 08:
Is there any difference between the northern and southern migration?

[00:20:30] Speaker 03:
Your honor, I don't know the answer to that.

[00:20:31] Speaker 08:
Some birds take a different route depending on whether it's the southern migration or the northern migration.

[00:20:39] Speaker 03:
Yeah, my understanding is that the Plovers may have more of a southerly migration of the turns, but I honestly don't know precisely how that bears upon the concern.

[00:20:49] Speaker 03:
I think the concern here was that they both would be required to cross the Antarctic Sound during migration, but also during other times.

[00:20:56] Speaker 08:
Well, it may affect your argument about when and how long feathering of the turbines should occur, right?

[00:21:05] Speaker 03:
Only in so far as the concern is that they would be feathering, everybody agrees, during a very narrow time frame.

[00:21:15] Speaker 03:
And in answer to your honest question, they did come up with the feathering only during migration season, during both the fall and the spring migration.

[00:21:22] Speaker 03:
So they weren't asking that these... How long is that?

[00:21:24] Speaker 03:
Well, generally, I think they were talking about several week period during both the spring and the fall.

[00:21:32] Speaker 03:
And even within that period, they were referring to, for the most part, specific meteorological conditions, not entirely during that period, but only during periods where

[00:21:43] Speaker 03:
the weather conditions and the nighttime conditions were such that there would be maximum risk.

[00:21:47] Speaker 03:
So they came up with a measure that would actually, according to the biologists, on average result in shutdown or feathering the turbines 67.5 hours during the 8,760 hours of the year.

[00:22:01] Speaker 03:
And one point that I think it's important to emphasize, as the service acknowledged on remand, the turbines would not be operating about 67% of the time in any case during the course of the year.

[00:22:14] Speaker 03:
So we're talking about a tiny fraction of the time when turbines theoretically could operate, as well as a tiny fraction of the time when they actually would be operating under the normal plan.

[00:22:27] Speaker 03:
And on remand, we submitted information that went to the very heart of the reasonableness of this measure.

[00:22:35] Speaker 03:
And I think it's important to stress exactly what the plaintiffs submitted that was totally disregarded by the agency.

[00:22:41] Speaker 03:
They said nothing about this information.

[00:22:43] Speaker 03:
One was information that in the last several years, since the 2008 biological opinion,

[00:22:49] Speaker 03:
Wind power projects throughout the country have adopted similar kinds of operational constraints, some at the request and some at the behest of the Fish and Wildlife Service, precisely to protect migratory birds as well as other at-risk species.

[00:23:05] Speaker 03:
And a litany of examples

[00:23:07] Speaker 03:
to demonstrate that it's not only not impracticable, but in fact it's now becoming commonplace to adopt these kinds of measures.

[00:23:15] Speaker 03:
And the second piece of information we ask the Service to consider... These are wind farms on land?

[00:23:21] Speaker 03:
Land-based wind farms.

[00:23:23] Speaker 03:
But again, direct analogy, that this is in fact something that companies are doing to take into account these impacts.

[00:23:29] Speaker 08:
Or the good many on inland bays, too.

[00:23:34] Speaker 03:
I'm sorry.

[00:23:34] Speaker 08:
There are a good many wind turbine farms on inland bays.

[00:23:40] Speaker 03:
Oh, yes, Roger.

[00:23:41] Speaker 03:
Quite a few, including on the East Coast, in fairly close proximity to this project.

[00:23:47] Speaker 03:
So no suggestion that these are not analogous.

[00:23:51] Speaker 03:
And in fact, again, no response to the information we submitted at all, period.

[00:23:56] Speaker 03:
And the second piece of information we submitted was not one but two extensive analyses by an undisputed expert in energy project financing, Dr. Jonathan Lesser, who analyzed whether this shutdown would have any kind of significant impact on project financing and concluded that it would not, that it would have at most a de minimis effect.

[00:24:18] Speaker 03:
2010 analysis that he did was already in the administrative record.

[00:24:22] Speaker 03:
This is a document that in 2010 we had submitted to the service and asked it to take into consideration, and that the service admittedly never considered.

[00:24:31] Speaker 03:
And then we went to the trouble of updating Dr. Lester's analysis, submitting that to the Fish and Wildlife Service, and again, totally and utterly disregarded by the agency.

[00:24:41] Speaker 01:
What is your position as to what the remand was supposed to accomplish?

[00:24:48] Speaker 01:
I have to say I'm confused by that.

[00:24:53] Speaker 01:
Is it that the remand was supposed to have the agency explain whether it indeed did perform an independent evaluation or make an independent determination in 2008?

[00:25:12] Speaker 01:
Or was the remand for the agency to actually make an independent evaluation and use only data that was available to it in 2008?

[00:25:29] Speaker 01:
Or was it to make an independent evaluation and use the best data available today or as of that time?

[00:25:37] Speaker 01:
Which of those three doors was the agency supposed to go through?

[00:25:42] Speaker 03:
Well, Your Honor, my best answer is what was actually said in the judgment that was issued, in which case the district court said point blank.

[00:25:50] Speaker 03:
The court grants summary judgment to these plaintiffs on their claims that the Fish and Wildlife Service violated the ESA by failing to make an independent determination regarding whether the feathering operational adjustment was a reasonable and prudent measure.

[00:26:05] Speaker 03:
So we certainly construed the plain language of that judgment and the accompanying opinion to say that they have to go ahead and make an independent determination.

[00:26:13] Speaker 03:
Now, in response to Your Honor's question, the government has obviously attempted to portray it in a different way and suggest that one outcome could have been simply an explanation that, well, we really did make that determination back in 2008.

[00:26:27] Speaker 03:
We just didn't explain what our reasoning for it was.

[00:26:30] Speaker 03:
Certainly not how we construed or how they reasonably can be construed, but what I would say is, from our vantage point, perhaps it doesn't matter.

[00:26:39] Speaker 03:
Because even if Judge Walton was giving the government the potential out of saying, well, we really did make that determination, independent determination, we just failed to explain where in the record of the 2008 biological opinion we did that.

[00:26:55] Speaker 03:
The only outcome, I think, could have been for them to come in and say, here's some document in the original administrative record that we overlooked.

[00:27:03] Speaker 03:
Sure, here's our independent determination.

[00:27:05] Speaker 03:
We either had it in the record and we failed to point Your Honor's attention to it, or we found some document subsequently that actually underlined the 2008 opinion.

[00:27:14] Speaker 03:
What they could not do, consistent with any principle of administrative law, is come up in 2014 with a declaration

[00:27:22] Speaker 03:
that says, we did make an independent determination.

[00:27:26] Speaker 03:
We simply didn't document it, especially when the contemporaneous record for the 2008 opinion proves conclusively they did not make that determination.

[00:27:35] Speaker 03:
They studiously avoided making that determination.

[00:27:38] Speaker 05:
Do we need to weigh in as to what was supposed to happen on remand in that regard?

[00:27:44] Speaker 05:
Because my understanding is that the Fish and Wildlife Service considered new information itself.

[00:27:51] Speaker 05:
before it made this either clarification or decision.

[00:27:54] Speaker 05:
And so what are the implications of its decision to at least reopen the record for itself to your argument?

[00:28:02] Speaker 03:
I agree, Your Honor.

[00:28:02] Speaker 03:
It does not have to determine precisely what was intended because by reopening the record,

[00:28:09] Speaker 03:
admittedly considering post-2008 data, extensive 2008 data, new information about the energy market in New England, that unavoidably means that they were purporting at least to address some new information.

[00:28:23] Speaker 03:
It means that the best available science standard comes into play under the act.

[00:28:27] Speaker 03:
And at the very least, they should have had to explain why they would consider that new information, but totally disregard this highly probative information that plaintiffs were submitting.

[00:28:37] Speaker 05:
Do we have case law on situations like that where an agency has gone back and on its own brought in new information on a remand?

[00:28:46] Speaker 05:
Do we have case law that says that then obligates them, either under the Dangerous Species Act or more generally under the APA, to consider new comments at that time as well?

[00:28:57] Speaker 03:
Well, I think the case what happened.

[00:28:59] Speaker 08:
That's what happened in Overton Park.

[00:29:03] Speaker 08:
After the Supreme Court sent it back.

[00:29:07] Speaker 08:
Because I mean, there's an analogy there.

[00:29:10] Speaker 08:
Because in Overton Park, the problem was that the administrator had no, there was no indication of the reasoning or any determination on the record.

[00:29:20] Speaker 08:
And in fact, the morning of that argument, I was there, the Solicitor General, who was Erwin Griswold, tried to hand up to the court an explanation in an affidavit, and the court refused to take it.

[00:29:33] Speaker ?:
Yeah.

[00:29:33] Speaker 03:
Yes, Your Honor, I think that's a good general APA example.

[00:29:37] Speaker 03:
I think that the actual ESA case from the district court, which we've never suggested that case is something that this court has to follow, but I think it's certainly suggested that from an ESA standpoint,

[00:29:50] Speaker 03:
where an agency does purport to consider new information, then the best available science standard would come into play.

[00:29:56] Speaker 03:
So it's a direct analogy that even the government has said is highly relevant here.

[00:30:01] Speaker 03:
So I think either you apply APA principles, Overton Park, State Farm,

[00:30:06] Speaker 03:
other EPA principles, then we get to that result.

[00:30:10] Speaker 03:
And I think if you apply the plain language of the essay and the purpose of the statute, I mean, it's somewhat astonishing that we have an agency that is supposed to be protecting species and has highly relevant information before it.

[00:30:22] Speaker 03:
that suggests that you can adopt these kinds of measures, and then refuses to acknowledge that information and say anything about it.

[00:30:30] Speaker 03:
Frankly, I just don't think that's consistent with the general concept of what the ESA is supposed to be about, in addition to these general APA kinds of concerns.

[00:30:38] Speaker 05:
You're over your time.

[00:30:39] Speaker 05:
I didn't know if you wanted to take just one minute to address the permitting issue.

[00:30:43] Speaker 03:
Yes, Your Honor.

[00:30:44] Speaker 05:
Thank you.

[00:30:45] Speaker 05:
My confusion is, is it your position that the agency needs to get the permit, or that the agency

[00:30:50] Speaker 05:
needed to require Cape Wind as a condition to get the permit.

[00:30:58] Speaker 05:
Doesn't matter which of those.

[00:30:59] Speaker 03:
Our position, Your Honor, is I think the fundamentally reasonable one that they had to ensure compliance by somebody.

[00:31:07] Speaker 03:
So either Boehm could get it, and we gave an example in our brief of a situation where a regulatory agency did, in fact, obtain a permit.

[00:31:15] Speaker 03:
The National Marine Fisheries Service was regulating longline fishing off the coast of Hawaii.

[00:31:20] Speaker 03:
Wainan got a special use permit for its regulatory activity.

[00:31:23] Speaker 03:
So, in fact, not only is it hypothetically possible, but it's been done.

[00:31:27] Speaker 03:
Or, as occurred with multiple other situations, they could have conditioned the lease and the rod and the cop

[00:31:35] Speaker 03:
construction operation plan on Cape Wind getting the permit.

[00:31:39] Speaker 03:
Either of those would have brought this into accordance with law under the MBTA in a similar fashion to what Judge Randolph said was necessary in the HSUS versus Glickman case in holding that a federal agency indeed can be sued under the APA.

[00:31:54] Speaker 03:
But answer to your question, either one of those mechanisms would have, I think, brought this into compliance, either by bone getting it itself

[00:32:03] Speaker 03:
Or by saying, as they did with the Clean Air Act, the Clean Water Act, the Endangered Species Act, the Marine Mammal Protection Act, and a host of other statutes where they conditioned operation on compliance with those statutes, ensuring compliance in some fashion, which is simply something they did not do in this situation.

[00:32:20] Speaker 05:
Well, the Migratory Treaty Act is a criminal statute.

[00:32:24] Speaker 05:
It's a pretty...

[00:32:26] Speaker 05:
heavy threat hanging over Cape Wind as it is, why would they need to have a condition?

[00:32:32] Speaker 05:
Isn't it sort of evident that any private company that knows it's going to be taking some protected animals under the statute will have every incentive to go get that permit?

[00:32:45] Speaker 05:
They're just not doing it right now because it's going to happen for a couple years.

[00:32:48] Speaker 05:
So what is the real problem here?

[00:32:50] Speaker 05:
I mean, if they don't go get one and they take a bird, then there can be a criminal prosecution.

[00:32:56] Speaker 03:
Two answers to that, Your Honor.

[00:32:58] Speaker 03:
First of all, Cape Wind has taken the position in this appeal that it's not required to comply with the Migratory Bird Treaty Act.

[00:33:04] Speaker 05:
Well, then they take that at the risk of criminal prosecution.

[00:33:06] Speaker 05:
I mean, that's their risk assessment to make, I guess.

[00:33:10] Speaker 03:
And the second answer, which I think is a stronger legal answer, is that post hoc criminal prosecution

[00:33:18] Speaker 03:
doesn't get at what the MBTA is designed to accomplish, and that is protecting migratory birds.

[00:33:24] Speaker 05:
Once the 130... So that's an odd way to describe a statute.

[00:33:26] Speaker 05:
That's a criminal statute.

[00:33:27] Speaker 05:
That's the mechanism Congress chose was post-hoc criminal prosecutions.

[00:33:31] Speaker 03:
Well, but Congress also passed the Administrative Procedure Act for the purpose of allowing agency actions to be addressed that are not in accordance with law, and so... Well, I know, but you could say that about any criminal statute, right?

[00:33:42] Speaker 03:
Well, again, but here we have circuit precedent in HSU versus Glickman saying that you can bring an APA claim based upon an action by an agency not being in accordance with law.

[00:33:53] Speaker 03:
And our very simple, straightforward proposition is when you authorize someone to engage in conduct,

[00:33:58] Speaker 03:
that you know will violate the law.

[00:34:01] Speaker 03:
When that project goes into operation, it's not an answer to say, respectfully.

[00:34:06] Speaker 05:
Well, they only know it will violate the law if they knew at the time they issued it.

[00:34:11] Speaker 05:
And it's 100% certain that Cape Wind will never get a permit and will also take.

[00:34:16] Speaker 05:
one of these birds.

[00:34:18] Speaker 03:
Well, I think that what you have to look at, as in any administrative law case, is this record.

[00:34:23] Speaker 03:
And on this record, we have no indication that the company intends to get a permit before the project goes into operation.

[00:34:31] Speaker 05:
And in fact, what we have on our... Did you have an indication at the time the agency made its decision that Cape Wind would not seek a permit, or did that come after the fact?

[00:34:39] Speaker 03:
I think we have an indication at the agency that Cape Wind will not seek a permit before this project goes into operation and starts killing birds.

[00:34:47] Speaker 03:
And the reason I give you that answer, Your Honor, is instead of requiring compliance with the permitting mechanism, what they instead came up with was what they referred to as the Avian Unbat Monitoring Plan.

[00:34:59] Speaker 03:
It's a plan designed to monitor

[00:35:00] Speaker 03:
for the birds that are killed after the project that goes into operation.

[00:35:04] Speaker 03:
And then that plan, which is, that is what was made a condition of approval.

[00:35:09] Speaker 03:
And that plan, when it goes into operation, will say, OK, well, we've killed a bunch of birds.

[00:35:13] Speaker 03:
Now what should we do about it?

[00:35:15] Speaker 03:
So I think what you have before you, in this case at least, is a record saying that that is going to be the way we report to comply with the MBTA.

[00:35:22] Speaker 08:
Does the Fish and Wildlife Service have any authority in the permitting or the

[00:35:28] Speaker 08:
permission that they grant to place conditions?

[00:35:32] Speaker 03:
Absolutely, Your Honor.

[00:35:33] Speaker 03:
Okay.

[00:35:33] Speaker 08:
If you look at the... Isn't it... I guess it's your position that the dynamics are entirely different if you wait until the project is completely constructed and they're about ready to throw the switch, as opposed to the design stage of the project, the pre-construction stage about the... with respect to the permitting dynamics of the situation.

[00:35:56] Speaker 03:
Exactly right, Your Honor.

[00:35:57] Speaker 03:
And if you look at the special permitting provision that we referred to, which is where they could try to get a permit, it's all designed to accomplish precisely that.

[00:36:06] Speaker 03:
It's to provide information up front so they could have the design take into account potential burn impacts.

[00:36:12] Speaker 03:
Just to give one example, I know I'm way over time, but I do think this is a critical point.

[00:36:16] Speaker 03:
Satellite has repeatedly asked that more surveys be done, particularly during nighttime and adverse weather conditions, so they could see whether or not the project could be what's referred to as microsighting.

[00:36:26] Speaker 03:
You don't have to necessarily change every turbine layout, but you could say, here's what we learned that the birds use this particular migratory route.

[00:36:33] Speaker 03:
So theoretically, in a permit, you can say the condition is that you have to adjust the permanent, the layout in some fashion that will minimize impacts, or here's the kind of steps that you should take to avoid impacts in other ways.

[00:36:46] Speaker 03:
That's the whole point of the permitting process.

[00:36:49] Speaker 08:
I want to allow you to address the government's argument that the permitting at this stage is too remote.

[00:36:57] Speaker 08:
It's the damage, the destruction of migratory birds in the future, and therefore there's no eminence requirement.

[00:37:08] Speaker 03:
Your Honor, I think your answer to it is now when we have the final agency action authorizing the project to proceed in the particular way that it has been set forth in great detail in both the lease as well as the construction operation plan.

[00:37:25] Speaker 03:
And to me, it's no different than what Your Honor was dealing with in the Glickman case in which the agency had come up with a plan to kill, as you may recall, Canada geese in that situation.

[00:37:35] Speaker 03:
And whether the agency had said we're going to be killing them tomorrow.

[00:37:39] Speaker 08:
They don't migrate anymore, by the way.

[00:37:41] Speaker 08:
But they're still migratory birds.

[00:37:42] Speaker 03:
I think some of them do, but many of them do not, as we all know from our personal experiences.

[00:37:48] Speaker 03:
But I don't think the answer would have been different in that case, whether they were going to carry out the plan next day or in a year.

[00:37:55] Speaker 03:
The fact of the matter is, if you have a final agency action saying, here is our project approval, and it's not being done in a way that is in compliance with the mechanisms.

[00:38:04] Speaker 08:
I wonder, I know the Supreme Court, what was it, the Clapper case recently in Justice Alito's opinion, talked about this imminence requirement with respect to standing.

[00:38:16] Speaker 08:
But I don't know what happened to the imminence requirement in Massachusetts versus EPA.

[00:38:20] Speaker 08:
The damage that the states allege from climate change was to their shoreline and was projected to happen 50 years from now.

[00:38:30] Speaker 03:
So what happened to the eminence requiring it?

[00:38:35] Speaker 03:
Obviously, the court applies a different test depending upon the circumstances.

[00:38:39] Speaker 03:
I would point out no one's raised a standing argument in this case.

[00:38:42] Speaker 03:
Obviously, the court has to satisfy their standing.

[00:38:44] Speaker 03:
But what I'm saying is the company is still intending to go ahead and build this project with 130 turbines in a place where migratory birds not only may, but in large numbers, will be killed.

[00:38:56] Speaker 03:
And we submit in violation of the act.

[00:38:58] Speaker 03:
What's the Audubon Society's estimate?

[00:39:00] Speaker 03:
Their estimate was about 2,200 to 6,000, which our expert... Per year.

[00:39:05] Speaker 03:
Per year.

[00:39:06] Speaker 03:
And our expert, Ian Nisbet, we pointed out in the briefs, said that was low by a magnitude of 10 or more.

[00:39:13] Speaker 03:
And the EIS itself said that they would be moderate to major impacts on migratory birds, moderate defined as

[00:39:20] Speaker 03:
a population level effect that perhaps could be mitigated and major being a population level effect that would be irreversible.

[00:39:26] Speaker 03:
So on this record, we're not dealing with speculation.

[00:39:29] Speaker 03:
We're dealing with an absolute certainty that many, many, many birds will be killed in violation of the act.

[00:39:33] Speaker 05:
And to follow up on George Randolph's timing question on the permit.

[00:39:37] Speaker 05:
Is it your position that before giving the green light to the construction of this project, they had to require Cape Wind to get that permit from the Fish and Wildlife Service right then, or just had to condition future operation on them having a permit in hand?

[00:40:01] Speaker 05:
or would that be left to the agency that much?

[00:40:03] Speaker 03:
I think anything further along those lines would put them in a much more reasonable posture than not making any effort at all.

[00:40:09] Speaker 03:
I think most consistent with the Act would be something saying you have to actually have a permanent hand like they did for multiple other statutory requirements, because going back to Judge Randolph's point, that is what would ensure that those migratory burden packs were taken into consideration.

[00:40:24] Speaker 03:
And just to sort of reinforce, this is not just domestic law.

[00:40:27] Speaker 03:
It's carrying out treaty obligations, as the Glickman case stressed.

[00:40:32] Speaker 03:
And so to conserve populations of migratory birds, ensuring that we had taken that into consideration before they are actually operating and killing birds, we argue is that that would be much closer.

[00:40:42] Speaker 03:
But certainly any of the possibilities you suggested would be a lot closer to the line than what happened here, which was basically saying we're not going to require any permitting mechanism at all to be carried out.

[00:40:52] Speaker 04:
All right.

[00:40:52] Speaker 04:
Thank you.

[00:40:52] Speaker 04:
We'll hear from the government now.

[00:41:03] Speaker 06:
Good morning, I'm David Duntrick from the Department of Justice here on behalf of the federal agency of FLEs.

[00:41:09] Speaker 06:
The Cape Wind project is an important project for meeting Massachusetts renewable energy needs.

[00:41:13] Speaker 06:
It poses no material risk to mariners and no jeopardy to any ESA listed species.

[00:41:18] Speaker 06:
And yet Cape Wind has been trying for 15 years to get federal approval for this project.

[00:41:22] Speaker 06:
This morning I want to talk about two reasons why this has taken so long and why they're relevant to this case.

[00:41:27] Speaker 08:
The first reason is... Was there ever any cost benefit analysis done of this project?

[00:41:32] Speaker 06:
No, I'm not aware of any cost-benefit analysis, but none of the statutes that apply to the agency's review of this project would have required any.

[00:41:42] Speaker 08:
I thought there was an executive order that required it.

[00:41:47] Speaker 06:
I'm sorry, Judge Randolph, I'm not aware that there is.

[00:41:50] Speaker 06:
But that doesn't mean that the agencies didn't take a detailed look at every aspect of this case.

[00:41:55] Speaker 06:
One of the reasons that this has taken so long is that a half dozen federal agencies have been looking at this project for a long time.

[00:42:03] Speaker 06:
First the Corps, then BOEM as the lead agency, wildlife agencies, and as they went along they continually gathered more and more information that went into the administrative record.

[00:42:12] Speaker 06:
And their staff continually identified more and more information

[00:42:15] Speaker 06:
that they needed that ultimately went into the administrative record.

[00:42:18] Speaker 06:
But the question that the Alliance raises is, did the decisions made at each stage of that record have support in the administrative record at that time?

[00:42:28] Speaker 06:
And the answer to that question is yes.

[00:42:30] Speaker 06:
The second reason this case has taken so long is that it's been tied up in litigation by these planets and others for years, including four years of litigation in the district court just to get to summary judgment here.

[00:42:40] Speaker 06:
And the reason that's relevant is that it helps explain what Judge Walton was looking at and what Judge Walton did when he remanded one issue under the DSA to the agency.

[00:42:49] Speaker 06:
He thought that he had issued a narrow remand that didn't require the Fish and Wildlife Service to make a new determination.

[00:42:56] Speaker 06:
The Fish and Wildlife Service came back to him and said, we did not make a new determination.

[00:42:59] Speaker 06:
We've given a new explanation.

[00:43:00] Speaker 05:
Why does any of that matter?

[00:43:01] Speaker 05:
You all considered new information.

[00:43:03] Speaker 05:
You took in new information.

[00:43:04] Speaker 05:
That's indisputed.

[00:43:05] Speaker 05:
So why weren't you then obligated to consider the best scientific information available, including the information provided by the petitioners?

[00:43:14] Speaker 06:
The kind of new information that the Fish and Wildlife Service examined on remand was just basic factual information about things like... What does that matter?

[00:43:20] Speaker 05:
You reopened the record.

[00:43:21] Speaker 06:
We didn't reopen the record for public comment.

[00:43:23] Speaker 05:
We just, we... Hey, you made a new decision.

[00:43:26] Speaker 05:
Whatever you did, even if you think you made a decision the first time around and it was hidden in the record and nobody saw it, what seems crystal clear to me is what you came back to the district court with was a decision that no way know how had ever been made before.

[00:43:39] Speaker 05:
It was a brand new decision by the agency, subject to ordinary agency challenge, both under the APA and the ESA.

[00:43:45] Speaker 06:
I disagree.

[00:43:46] Speaker 06:
I think that what Judge Walton

[00:43:48] Speaker 06:
That may have been what he intended to do, but that's not what the agency did or how the agency construed it.

[00:44:07] Speaker 01:
I mean, the agency could have said, like you say, and I think in the footnote of your brief where you cite some documents that say, that would seem to show that the agency made its own determination, the agency could have basically gathered those documents and said, see, we made our own determination back then.

[00:44:30] Speaker 01:
But you didn't.

[00:44:31] Speaker 01:
You used new information, as Judge Millett said, that was generated post-2008.

[00:44:37] Speaker 01:
And the declaration itself is from an official who wasn't even there in 2008, who's the deciding official, right?

[00:44:49] Speaker 01:
He's not even there at that time.

[00:44:53] Speaker 01:
So you got some tough sledding to persuade me that this wasn't a new determination.

[00:45:02] Speaker 06:
We understood Judge Walton to be saying the Fish and Water Service has to apply its own expertise to the rationale that BOEM had stated in 2008.

[00:45:11] Speaker 06:
Do you agree with it, or do you not agree with it?

[00:45:13] Speaker 06:
And so of course that required us to give this record to our economist, who admittedly wasn't there in 2008, and see whether in the application of his expertise, this is Dr. Laughlin,

[00:45:23] Speaker 06:
Did he agree with that?

[00:45:24] Speaker 06:
And in order to determine whether he agreed with it, he looked at basic factual information like when the winds are highest, when the feathering... The whole way you're framing that doesn't make any sense to me.

[00:45:33] Speaker 05:
The holding was that the statute requires an independent determination by the Fish and Wildlife Service.

[00:45:38] Speaker 05:
So why would Judge Walton be able to go, actually don't make an independent determination, just look at this thing that the Bureau did, and tell us thumbs up or thumbs down.

[00:45:46] Speaker 05:
That would be contrary to law itself.

[00:45:49] Speaker 05:
I don't think that's what he was ordering.

[00:45:50] Speaker 05:
He was ordering you all to make a decision.

[00:45:51] Speaker 06:
I think it was unclear from the record to Judge Walton whether the Fish and Wildlife Service had made its own decision or had delegated that decision to BOEM.

[00:46:00] Speaker 06:
And what the Fish and Wildlife Service told Judge Walton is we did make our own decision.

[00:46:04] Speaker 06:
The substantial evidence in the record for that decision was BOEM's advice to us.

[00:46:07] Speaker 06:
And we understood on remand that Judge Walton didn't want us to rely just on BOEM's advice but apply our own expertise to the record as it had existed in 2008.

[00:46:16] Speaker 05:
It's not what you did, though.

[00:46:18] Speaker 05:
You added new things to the record.

[00:46:20] Speaker 05:
I take it you don't dispute it, but new information was considered post-2008.

[00:46:24] Speaker 06:
Yes, Dr. Laughlin considered some post-2008 information, but only in applying his expertise, the kind of knowledge that

[00:46:34] Speaker 06:
an expert in the economics of energy projects would have and would use to evaluate the information that was in the record in 2008.

[00:46:40] Speaker 05:
Do you think he had an obligation to make the best scientific decision consistent with the best scientific information available?

[00:46:47] Speaker 06:
Well, the parties agree that he only had an obligation to do that if he was making a wholly new determination.

[00:46:53] Speaker 06:
That's the Kempthorne standard, and Judge Walden pointed it out as one of the few points of agreement.

[00:46:57] Speaker 01:
So what was this, a kind of new determination?

[00:47:01] Speaker 01:
A halfway new determination?

[00:47:03] Speaker 06:
It made the same decision, it restated the same decision that had been made in 2008 and it was based on the same rationale that had been stated in 2008 and that had been in the record all along

[00:47:15] Speaker 06:
for peer to challenge if they wanted to.

[00:47:16] Speaker 06:
And in fact, they did, at first, in their complaint, raise the issue that the service should have used this new information.

[00:47:23] Speaker 06:
That's why it's in the administrative record, as they point out.

[00:47:25] Speaker 06:
That the service should have used this new information when it had made its decision in 2008.

[00:47:31] Speaker 06:
But then it dropped that claim on summary judgment.

[00:47:32] Speaker 05:
And so Judge Walton said, you can't rely on that.

[00:47:35] Speaker 05:
Why on earth is a matter of?

[00:47:37] Speaker 05:
appropriate government, a good government, doing what it's supposed to do under this statute, making the independent decision with all the information you should have in hand when you make an independent decision.

[00:47:49] Speaker 05:
Why on earth wouldn't you want to consider what petitioners provided?

[00:47:53] Speaker 05:
What are you afraid of?

[00:47:54] Speaker 05:
Or what were you afraid of?

[00:47:57] Speaker 06:
One of the answers is that we understood Judge Walton to be ordering us to do something narrow, to make a ministerial change.

[00:48:03] Speaker 06:
As I mentioned at the beginning of my presentation, this process had been going on for a long time.

[00:48:07] Speaker 05:
I cannot imagine that the U.S.

[00:48:08] Speaker 05:
Justice Department would agree that a district court can displace

[00:48:12] Speaker 05:
and meant to displace a statutory obligation to make an independent decision with some direction to go look at this and just give me a thumbs up or thumbs down.

[00:48:22] Speaker 05:
I don't think that's what he did, and I don't think any statute would permit it, and I'm shocked that the Justice Department would think a court can do that.

[00:48:28] Speaker 06:
In our view, the question is, was Pierre able to challenge this determination earlier?

[00:48:33] Speaker 06:
That's the question that was before Judge Walton for the exercise.

[00:48:36] Speaker 05:
He was never able to challenge FWS's determination earlier.

[00:48:40] Speaker 06:
It was surely able to challenge the rationale that the Fish and Wildlife Service ultimately depended on, which was the same as the rationale that Voam had put in the record in 2008.

[00:48:48] Speaker 05:
They could have, but they said, I don't care about their decision.

[00:48:51] Speaker 05:
It's not the right decision.

[00:48:52] Speaker 05:
I mean, they're supposed to challenge the wrong party's decision for being wrong instead of the right party's decision as being wrong.

[00:48:59] Speaker 06:
They could have, and they did in their complaint.

[00:49:01] Speaker 06:
And then they dropped that claim on summary judgment.

[00:49:03] Speaker 06:
And Judge Walton, what he did is he said, you can't revive that claim.

[00:49:06] Speaker 06:
You've had your chance.

[00:49:07] Speaker 06:
You've had all the chances you need.

[00:49:08] Speaker 06:
This rationale has been in the record for a long time, and you've failed to challenge it.

[00:49:12] Speaker 06:
But I do want to raise before the court the possibility that you might also affirm Judge Walden's judgment on the alternate ground that what the agency did was valid under the ESA.

[00:49:23] Speaker 06:
The plaintiffs argued in their opening brief

[00:49:26] Speaker 06:
the reasons why they believe that it wasn't valid, that the agency should have used the best available science.

[00:49:31] Speaker 06:
And we argued in our response brief that what the agency did was valid, that Dr. Laughlin's memo provides substantial evidence to support the original conclusion that BOEM reached in 2008, that the feathering measure is not reasonable and prudent.

[00:49:44] Speaker 06:
That would cause more than a minor change in the project, particularly the economic one.

[00:49:50] Speaker 08:
What exactly is feathering?

[00:49:52] Speaker 08:
Does that mean that the turbines are locked, shut down and locked?

[00:49:57] Speaker 08:
Or does it mean that they're just turning at a very, very slow rate despite the wind speed?

[00:50:04] Speaker 06:
They're shut down, and the blades are turned into the wind to present a narrower face for collision.

[00:50:12] Speaker 06:
And also the fact that they're not moving makes it easier for the birds to detect them.

[00:50:16] Speaker 08:
But one important thing about it is that if your theory were correct, and in the meantime, since 2008, there was a new scientific discovery that if we put on wind turbines something that will

[00:50:32] Speaker 08:
disrupt the magnetic field that the birds will fly over the turbines.

[00:50:38] Speaker 08:
And there's evidence now that birds migrate according to sensing the magnetic field, not stars or anything.

[00:50:47] Speaker 08:
And if that scientific development came about, under your theory, the Fish and Wildlife Service could ignore it, right, on remand.

[00:50:57] Speaker 06:
If it were material new information, then there could be an obligation under the ESA to reinitiate consultation.

[00:51:02] Speaker 06:
And in fact, at one point, Peter had raised a claim that the service was required to reinitiate consultation with BOEM in order to consider information like that.

[00:51:10] Speaker 06:
But they have dropped that claim, and it's not relevant on appeal.

[00:51:13] Speaker 06:
The only question here is whether what the agency did on remand complied with the ESA, particularly whether it made a wholly new determination.

[00:51:21] Speaker 06:
But the court could also skip over that question and go right to the question of whether we comply with the ESA.

[00:51:26] Speaker 06:
And as I was saying a minute ago, the Laughlin memo that is in the record demonstrates that there is substantial evidence in the record to support the determination that this is not reasonable and prudent.

[00:51:37] Speaker 06:
It has the potential to protect a very small number of listed birds per year.

[00:51:46] Speaker 06:
total possible take.

[00:51:48] Speaker 08:
Well, if it's an endangered species, by definition, there's going to be a small number, right?

[00:51:54] Speaker 06:
That's true.

[00:51:54] Speaker 06:
But the Fish and Wildlife Service determined, and it's not disputed here, that even taking that number without the feathering measure would cause no jeopardy to the listed species.

[00:52:04] Speaker 06:
So in some instances, a take of a small number of individuals might be an ESA problem, but here it's simply not.

[00:52:09] Speaker 06:
The agency made a no jeopardy determination, and that determination is not disputed here.

[00:52:17] Speaker 06:
Before my time runs out, unless the court has further questions on those issues, let me turn to the Coast Guard issues that you were discussing with Mr. Sharp.

[00:52:27] Speaker 08:
Are you skipping over the migratory bird treaty?

[00:52:30] Speaker 06:
I can answer questions about that if you'd like.

[00:52:34] Speaker 08:
Well, are you going to make any argument about it?

[00:52:36] Speaker 06:
I can argue about that now.

[00:52:41] Speaker 06:
The key point here is that peers are relying on circuit precedent, the Glickman case, they say, for the proposition that the agency itself has to get a permit.

[00:52:50] Speaker 06:
And I think that if you read their brief, the only reasonable interpretation of their argument is that they say BOEM has to get the permit itself.

[00:52:56] Speaker 05:
Well, now they're telling us that either or.

[00:52:59] Speaker 05:
And so what's wrong with the either or?

[00:53:03] Speaker 05:
You had to at least require BOEM to get a permit.

[00:53:06] Speaker 06:
The answer to whether the agency has to get the permit itself is determined by the Glickman case.

[00:53:12] Speaker 06:
The Glickman case discussed not only who the MBTA applies to, it does apply to the federal government, but also what kind of activity it prohibits.

[00:53:23] Speaker 06:
And it clearly stated the only thing that matters for purposes of the MBTA is whether a person is taking or is about to take

[00:53:31] Speaker 06:
a migratory bird.

[00:53:33] Speaker 06:
And that's simply not the case here.

[00:53:35] Speaker 06:
It's certainly not the case that BOEM is about to do so unlawfully because, as Judge Malata pointed out, there are additional administrative processes that will take place when there's the risk of whether or will or will not be able to get a permit.

[00:53:48] Speaker 06:
And so it's simply not the case that an agency has to ensure that an applicant is going to fulfill all other future regulatory requirements and, indeed, avoid all future criminal liability.

[00:53:58] Speaker 05:
Isn't it different when you know

[00:54:01] Speaker 05:
severe damage is going to happen when you know there's going to be a lot of harm that's going to result from this operation.

[00:54:08] Speaker 05:
This isn't unknown.

[00:54:10] Speaker 05:
It's known.

[00:54:10] Speaker 05:
It seems to be undisputed that a large number of migratory boarders are going to get killed year in and year out.

[00:54:17] Speaker 05:
Right.

[00:54:17] Speaker 06:
And EIS, which has to consider foreseeable environmental consequences, discusses that fact.

[00:54:23] Speaker 06:
But that's different from the legal question of the MDTA of whether that take will be unlawful.

[00:54:27] Speaker 05:
When you know it's going to happen, I take it your argument is you're not doing the taking.

[00:54:33] Speaker 05:
That is our argument.

[00:54:34] Speaker 05:
And so we don't have to get a permit or require Cape Wind to get a permit.

[00:54:41] Speaker 05:
But if you know it's going to happen,

[00:54:44] Speaker 05:
I mean, surely the federal government couldn't, some federal agent couldn't stand down there and say, I can't shoot this bird that's flying overhead, but I can hand the rifle to someone else and say, you have our permission to shoot.

[00:54:57] Speaker 05:
That wouldn't be allowed.

[00:54:58] Speaker 05:
And that's what you're arguing here, isn't it?

[00:55:00] Speaker 06:
I think that the concept of approximate cause may help get through that ticket.

[00:55:08] Speaker 08:
But you might want to mention aiding and abetting, too.

[00:55:14] Speaker 06:
Again, the concept of proximate cause is important there, because here the proximate cause of any bird take would be the operation of the turbines themselves.

[00:55:24] Speaker 06:
Those will be operated by Cape Wind and constructed by Cape Wind.

[00:55:26] Speaker 08:
Which can't be done unless the agency and the Department of the Interior approves the lease.

[00:55:34] Speaker 07:
That's right.

[00:55:34] Speaker 08:
Which is why I said aiding and abetting.

[00:55:36] Speaker 08:
I mean, why isn't that arm of the federal government aiding and abetting a criminal violation?

[00:55:42] Speaker 06:
Because again, we don't know that there will be a criminal violation.

[00:55:45] Speaker 06:
Cape Wind has an opportunity to get a permit.

[00:55:47] Speaker 06:
And indeed, the lease itself states, as a term of the lease, that Cape Wind is obligated to comply with all applicable laws and regulations.

[00:55:53] Speaker 06:
And the MBTA has won.

[00:55:56] Speaker 06:
It seems like it would place a tremendous burden on federal agencies not only to require, as terms of their lease or permit or license or whatever, that the permittee comply with laws, but also... But you've done that for other things, right?

[00:56:10] Speaker 05:
You require that they get, the Cape Wind get an incidental harassment authorization under the Marine Mammal Protection Act.

[00:56:17] Speaker 05:
So you've done condition things like that as part of this project.

[00:56:21] Speaker 05:
So how is it that you pick and choose

[00:56:23] Speaker 05:
to clique in when it's known and disputed that there's going to be so much harm to animals.

[00:56:28] Speaker 05:
Not to do it here, but did do it there.

[00:56:30] Speaker 06:
I would say that the lease does contain that condition by requiring Cape Wind to comply with all applicable laws.

[00:56:38] Speaker 06:
The fact that we may have stated another condition more specifically doesn't mean that we have allowed Cape Wind to go out and violate the MBTA simply by granting them evidence.

[00:56:47] Speaker 05:
Then why did you bother to do the incidental harassment authorization?

[00:56:52] Speaker 06:
I'm not sure what the rationale was.

[00:56:54] Speaker 05:
It's not at all uncommon for agencies to put conditions on, and I think the best time for them to put conditions on is when they know that harm is going to happen as a result.

[00:57:09] Speaker 05:
There's just no dispute, and it's a material amount of harm.

[00:57:13] Speaker 05:
is going to happen.

[00:57:15] Speaker 05:
And worse still, if you've got the person you're giving the permit to saying, I don't need to get a permit, doesn't that make it even worse?

[00:57:22] Speaker 06:
It's not uncommon, but the question is, does the MBTA, a criminal statute that opposes criminal liability and makes parties that are going to themselves take migratory birds get a permit, does that

[00:57:33] Speaker 06:
extend back to the stage of approval by an agency.

[00:57:36] Speaker 06:
And I would also point out that there's a relevant difference between the MBTA and some of the other statutes that might apply here.

[00:57:42] Speaker 05:
There's no question it applies back, at least if you all are the ones doing the taking.

[00:57:46] Speaker 05:
If we're the ones doing the taking, yes.

[00:57:48] Speaker 05:
Why would there be any rational basis for distinguishing between whether you're doing the taking or whether you're handing the rifle to somebody knowing they're going to shoot?

[00:57:58] Speaker 05:
And telling them, you have our authorization to shoot.

[00:58:00] Speaker 06:
It might be relevant if we don't know whether they have a permit.

[00:58:02] Speaker 06:
We don't know that handing them the rifle is unlawful.

[00:58:05] Speaker 06:
And here, we're quite a ways back in the chain of causation from handing them a rifle.

[00:58:08] Speaker 05:
Didn't you know they didn't have a permit at the time you authorized construction?

[00:58:12] Speaker 06:
Yes, we knew that they didn't then have a permit.

[00:58:13] Speaker 06:
But they haven't even started construction yet.

[00:58:15] Speaker 05:
It's a long way between now and- Were you aware that they weren't planning to get a permit?

[00:58:20] Speaker 06:
I'm assuming that they're planning to comply with the lease term that obligates them to follow all applicable laws and regulations.

[00:58:27] Speaker 08:
regulation or whatever that would say, for example, that Cape Wind, if tomorrow they went to the Fish and Wildlife Service and asked for a permit to kill migratory birds, is there any indication that the Fish and Wildlife Service would say, wow, your project's two years away, so we're not going to pass on that now?

[00:58:52] Speaker 06:
The Fish and Wildlife Service currently has in process some regulations that it's considering for authorizing incidental take with respect to renewable energy installations like this.

[00:59:04] Speaker 06:
So what the Fish and Wildlife Service would say tomorrow, I don't know.

[00:59:07] Speaker 06:
But this project is not going to be constructed tomorrow.

[00:59:09] Speaker 08:
Is that a notice of proposed rulemaking that you're referring to?

[00:59:14] Speaker 06:
I'm sorry, I'm not sure quite how far along in the regulatory process that proposal is.

[00:59:19] Speaker 06:
But it's important to remember that this project is not going to be constructed tomorrow.

[00:59:23] Speaker 06:
Currently, Cape Wind has a two-year suspension of its lease, so it can't do anything at the moment anyway.

[00:59:29] Speaker 06:
There is time for Cape Wind to continue to fulfill its regulatory requirements.

[00:59:33] Speaker 06:
between now and the time construction begins.

[00:59:35] Speaker 06:
And the agency can reasonably rely on that when it's fulfilling its obligation under the statutes that it is administering here, NEPA, OXLA, NHPA.

[00:59:45] Speaker 05:
Is it the position of the U.S.

[00:59:47] Speaker 05:
government that they are obligated to get a permit before they start operating?

[00:59:55] Speaker 06:
Yes, if their project will cause the take of migratory birds.

[00:59:59] Speaker 05:
Well, you don't dispute that it will, do you?

[01:00:01] Speaker 05:
No, we don't dispute that.

[01:00:02] Speaker 05:
OK, so your official position, so Kaplan can hear this, is that they are obligated under federal law to get a permit.

[01:00:09] Speaker 05:
That's one of the obligations they have as a condition of their lease before they start working, operating.

[01:00:13] Speaker 06:
Yes.

[01:00:15] Speaker 06:
or they will be exposed to criminal liability.

[01:00:17] Speaker 06:
And you're representing... No, no, that's different.

[01:00:20] Speaker 05:
That's different.

[01:00:21] Speaker 05:
You said there's a condition in the lease that they have to comply with all federal law.

[01:00:25] Speaker 05:
I assume complying with federal law doesn't mean getting prosecuted.

[01:00:28] Speaker 05:
It means doing the things to avoid committing a crime, correct?

[01:00:33] Speaker 05:
Including getting a permit in advance.

[01:00:34] Speaker 06:
Yes, I'm sorry.

[01:00:35] Speaker 06:
I misunderstood your question before.

[01:00:38] Speaker 06:
I don't know if we have ever explicitly stated in the record that we will require that as a condition, but we do understand that to be one of the laws that they are obligated to comply with, and so if they fail to do that... I'm asking what you mean.

[01:00:47] Speaker 05:
You assured me that the lease said they have to comply with federal law.

[01:00:50] Speaker 05:
Yes.

[01:00:51] Speaker 05:
You assured me that there's no dispute, that migratory boards will be taken, and everybody knows that once these things start operating.

[01:01:01] Speaker 05:
And so I guess I'm having trouble understanding why the federal government then wouldn't quite easily say they are obligated to get a permit before they

[01:01:07] Speaker 05:
Hit the on switch.

[01:01:08] Speaker 06:
Yes, they are obligated to get a permit.

[01:01:10] Speaker 06:
If they don't, they'll be subject to criminal liability under the MBTA and also to any remedies that BOEM has for breach of the lease, including fines, penalties, complete rescission of the lease.

[01:01:20] Speaker 06:
Failure to get a permit will violate the lease.

[01:01:22] Speaker 06:
Yes.

[01:01:22] Speaker 08:
Can Fish and Wildlife set conditions when somebody applies for a permit?

[01:01:30] Speaker 06:
For an MBTA permit?

[01:01:31] Speaker 06:
Right.

[01:01:32] Speaker 06:
Yes, I believe so.

[01:01:34] Speaker 08:
And if Cape Wind waited until the project was completed and they were about to throw the switch and then sought a permit, Fish and Wildlife at that time could say, well, no, your turbines are too close together or too far apart, or they operate too many days of the year, et cetera, they could do that then?

[01:01:58] Speaker 06:
I don't know exactly what kind of conditions that Fish and Wildlife can put into a permit, but Fish and Wildlife could certainly deny a permit if it believed that the tape would not meet the criteria.

[01:02:09] Speaker 08:
And you represent Fish and Wildlife before us now.

[01:02:12] Speaker 08:
Yes.

[01:02:12] Speaker 08:
So the position you're advocating that no permit was required at this stage from the other federal agency is Fish and Wildlife's position too, right?

[01:02:24] Speaker 06:
Yes, that's right.

[01:02:25] Speaker 06:
In fact, Fish and Wildlife

[01:02:26] Speaker 06:
Pursuant to an executive order has a different method for managing its relations with other agencies with respect to the MBTA.

[01:02:34] Speaker 06:
There's an executive order that requires Fish and Wildlife to enter into a memorandum of understanding with those agencies.

[01:02:39] Speaker 06:
And here there is a memorandum of understanding with BOEM about how the MBTA issues will be managed between those two agencies.

[01:02:46] Speaker 06:
And so that is actually an instructive contrast to the ESA.

[01:02:51] Speaker 06:
The ESA says before an agency can approve a permit or approval lease, it must consult if the project is likely to result in jeopardy to elicit species or adverse modification of critical habitat.

[01:03:03] Speaker 06:
The MBTA has no such provision.

[01:03:06] Speaker 06:
It can apply at the moment of take, but it doesn't apply at the moment of approval.

[01:03:12] Speaker 06:
Let me try and briefly address.

[01:03:14] Speaker 05:
Do you read Glickman as saying it's all about the moment of take?

[01:03:17] Speaker 05:
I mean, it's a little hard to figure out how the APA challenges.

[01:03:21] Speaker 05:
The APA's incorporation of MBTA protection is only going to operate at the actual take stage as opposed to the agency final action stage.

[01:03:29] Speaker 05:
Trying to figure out what your view is.

[01:03:32] Speaker 05:
I don't think the MOU would change that, does it?

[01:03:34] Speaker 06:
Our position is that the MBTA prohibits actual take.

[01:03:40] Speaker 06:
A party can be criminally liable if they actually take.

[01:03:44] Speaker 06:
And so in Glickman, the agency was enjoined from imminently taking itself migratory birds and taking the position that it did not require a permit and it didn't have a permit.

[01:03:55] Speaker 06:
And that's simply very different from the fact pattern before the court today.

[01:04:00] Speaker 05:
But in your view, is that if the agency instead promulgated some sort of final regulation that announced it was planning in two years to start doing an activity that would knowingly take incidentally, but itself, not K-Blan, but itself was going to imagine it's going to run its own turbines, that under Glickman and the APA's

[01:04:26] Speaker 05:
incorporation of MBTA protections, that final agency action would be perfectly fine as long as the agency gets a permit two years later.

[01:04:33] Speaker 05:
It's actually not required to do it at the time it makes the final agency action.

[01:04:37] Speaker 06:
As long as the agency gets a permit, then yes.

[01:04:39] Speaker 06:
And the court would apply the ordinary standard for enjoining unlawful conduct if it came to a point where it appeared the agency would not get a permit.

[01:04:48] Speaker 06:
But that was what happened in Glickman.

[01:04:49] Speaker 06:
Right before the agency was set to act,

[01:04:51] Speaker 06:
it was enjoined because it did not have a permit and was not going to get a permit.

[01:04:55] Speaker 06:
But in the situation you're describing, if the agency still had an opportunity to get a permit, then I don't think an injunction would be appropriate because it would not be clear that there was about to be a violation of the law.

[01:05:04] Speaker 06:
A violation requires no permit.

[01:05:10] Speaker 06:
Let me address briefly the Coast Guard issues that you discussed with Mr. Sharp.

[01:05:18] Speaker 06:
The question here is what does the statute require?

[01:05:22] Speaker 06:
The legislative history of the statute indicates

[01:05:25] Speaker 06:
that the sponsors in Congress wanted specifically to leave it up to the Commandant of the Coast Guard to decide what is necessary to protect negative impact navigation and that Congress will trust the Commandant to act responsibly.

[01:05:38] Speaker 05:
Section 440.

[01:05:38] Speaker 05:
Did the Congress want the Coast Guard to decide what the alternatives are or the Secretary?

[01:05:43] Speaker 06:
The statute section 414 itself refers to the alternatives that the secretary will consider.

[01:05:49] Speaker 06:
And that's why it's not particularly relevant what was in the EIS for the Corps.

[01:05:52] Speaker 06:
The question is what's going to be in the future EIS for

[01:05:58] Speaker 06:
I'm sorry, the question should be, as the Alliance has framed it, what will be in the future EIS for Willem.

[01:06:07] Speaker 06:
But that's not necessarily what Congress had in mind, because of course it required the Coast Guard to specify terms and conditions 60 days in advance of that.

[01:06:14] Speaker 06:
And in fact, the Coast Guard specified its terms and conditions about six months in advance.

[01:06:19] Speaker 06:
And so what the agency said, what the Coast Guard said about its interpretation of alternatives, is found at JA 1649.

[01:06:25] Speaker 06:
It said, we're going to consider the alternatives that Cape Wind has put before Boeing for approval.

[01:06:33] Speaker 10:
May I have your attention, please?

[01:06:39] Speaker ?:
May I have your attention, please?

[01:06:40] Speaker ?:
This has been a fire emergency reported in the building.

[01:06:42] Speaker 05:
Please leave the building by nearest exit or next to the stairway.

[01:06:47] Speaker 05:
Do not use the elevator.

[01:06:47] Speaker 05:
We'll be in recess until the sense.

[01:29:47] Speaker ?:
Well, it's been a year since we've been here in the city.

[01:31:18] Speaker ?:
Yes, sir.

[01:31:51] Speaker ?:
th th

[01:32:17] Speaker ?:
Oh.

[01:32:54] Speaker ?:
And you're also turning the lights on and off.

[01:33:35] Speaker ?:
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[01:34:07] Speaker 02:
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[01:34:52] Speaker 02:
Yeah.

[01:35:18] Speaker ?:
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[01:35:41] Speaker 02:
th th th th

[01:36:16] Speaker 02:
Thank you.

[01:36:37] Speaker ?:
Thank you.

[01:37:02] Speaker 02:
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[01:37:30] Speaker ?:
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[01:37:53] Speaker ?:
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[01:38:15] Speaker 02:
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[01:38:39] Speaker ?:
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[01:39:05] Speaker ?:
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[01:39:33] Speaker 02:
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[01:39:59] Speaker ?:
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[01:40:23] Speaker ?:
Thank you.

[01:40:39] Speaker ?:
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[01:41:12] Speaker 05:
I apologize for the interruption.

[01:41:36] Speaker 05:
Thank you for returning so promptly to council.

[01:41:38] Speaker 05:
Mr. Gunner, do you want to just finish up quickly on the Coast Guard issue?

[01:41:43] Speaker 06:
Sure, and unless the court has further questions, I'll finish up quickly on all the issues.

[01:41:49] Speaker 06:
The point that I'd like to make about what the Coast Guard did is that at the time it transmitted its terms and conditions to BOEM in 2007, it did specify all the terms and conditions that it could then determine were necessary for navigation safety.

[01:42:03] Speaker 06:
And it said, in that document, we determined that these conditions will provide for navigation safety.

[01:42:10] Speaker 08:
What were they again?

[01:42:13] Speaker 06:
There were some immediately accurate conditions like markings, moorings, control center operations requirements, and there were some forward-looking conditions that would allow the Coast Guard to intervene later if it determined that a war was necessary to protect navigational safety.

[01:42:28] Speaker 06:
But the point I'd like to make is that the Coast Guard later responded to public comments on those terms and conditions.

[01:42:35] Speaker 06:
It did it in its comments on the draft EIS and it took the responsibility for responding to comments about navigation.

[01:42:42] Speaker 06:
And in some instances it found these comments lead us

[01:42:45] Speaker 06:
to believe that new information is required, for example, with respect to marine radar.

[01:42:50] Speaker 06:
So it did additional studies.

[01:42:51] Speaker 06:
It did a 2008 navigational safety assessment.

[01:42:54] Speaker 06:
It did a 2009 marine radar assessment.

[01:42:56] Speaker 01:
Just so that I'm clear, your friend on the other side says that no determination was made.

[01:43:03] Speaker 01:
You dispute that.

[01:43:04] Speaker 01:
Point me to where in the record this determination was made.

[01:43:13] Speaker 06:
JA 1648 is where the Coast Guard specifically found that these conditions will provide for navigational safety.

[01:43:21] Speaker 06:
I think the quote that my colleague was referring to was on the next page, where the Coast Guard said, if we get more information, then we can make a determination about additional issues, but no determination on those issues has been made at that time.

[01:43:34] Speaker 06:
That's what I'm trying to convey, that as the Coast Guard got more information, it assessed that information to determine whether new terms and conditions were necessary.

[01:43:42] Speaker 06:
And in each instance, it determined that none were necessary.

[01:43:46] Speaker 01:
What are we to make of this very specific and explicit language in the statute that says,

[01:43:54] Speaker 01:
was far as sequencing.

[01:43:58] Speaker 01:
Congress says not later than 60 days before the draft environmental impact statement, these determinations are to be made and these reasonable terms and conditions are to be provided for.

[01:44:16] Speaker 01:
That's pretty specific.

[01:44:17] Speaker 01:
We know that they were talking about this very project.

[01:44:22] Speaker 01:
And one way of reading this record is that the Coast Guard kind of kicked the can down the road.

[01:44:30] Speaker 06:
The Coast Guard can't do the impossible.

[01:44:32] Speaker 06:
It can only analyze the record that's before it at the time that Congress told it to make the decision.

[01:44:38] Speaker 06:
And that is at an early stage of this process, 60 days before even the draft EIS was published.

[01:44:43] Speaker 06:
And so the Coast Guard said, technology is ever-changing.

[01:44:46] Speaker 06:
Aid to navigation, operation center design, these things are fluid.

[01:44:50] Speaker 06:
And it's not a wise use of Coast Guard resources to analyze these things with almost certain knowledge that the plans will change.

[01:44:57] Speaker 06:
And so what the Coast Guard did was specify terms and conditions that would apply based on the record that it had before it in August 2007 when Congress told it to make the decision.

[01:45:08] Speaker 06:
And at that time, it specified all the terms and conditions that the Commandant could then determine were necessary to provide for navigation safety.

[01:45:15] Speaker 06:
But the statute also says the Coast Guard's responsibility here is to provide for navigation safety.

[01:45:20] Speaker 06:
And the Coast Guard did that by providing for itself a continuing role in this process.

[01:45:25] Speaker 06:
Under the plaintiff's theory here, the Coast Guard would be done at that point, six months in advance of the draft EIS, no matter how the plans might change after that.

[01:45:34] Speaker 06:
And instead, the Coast Guard interprets Section 414 to allow it to look forward from that time and maintain a continuing rule for itself.

[01:45:41] Speaker 06:
And that's what it did.

[01:45:43] Speaker 05:
And you had said the Coast Guard said it was going to make a subsequent final determination.

[01:45:47] Speaker 05:
That's what your brief said.

[01:45:49] Speaker 05:
That was his plan all along.

[01:45:50] Speaker 05:
Did it make that subsequent final determination?

[01:45:54] Speaker 06:
I don't know of any document where it said, this is our final determination, but it analyzed more information as it came in.

[01:46:01] Speaker 06:
BOEM understands it is an obligation to discuss construction and design changes with the Coast Guard, and the Coast Guard had an opportunity then to specify additional terms and conditions if necessary.

[01:46:12] Speaker 06:
That actually is also a requirement of the lease and a specific that BOEM, that Cape Wayne must comply with any additional terms and conditions that the Coast Guard might impose.

[01:46:21] Speaker 05:
But then if there's no subsequent final determination by the Coast Guard, how could someone challenge their final decision on what the, at the end of the process, what the safety requirement, navigational safety requirements are?

[01:46:34] Speaker 06:
Well, on all of these issues, the challenge is to BOEM's approval, to BOEM's records of decision approving the project, approving the lease, and approving the construction plan.

[01:46:45] Speaker 06:
And so those are the opportunities that a party would have to say this construction plan has been approved without the necessary terms and conditions to provide for navigation safety.

[01:46:57] Speaker 05:
But you have no discretion over navigation safety.

[01:46:59] Speaker 05:
You have to do whatever the Coast Guard suggests.

[01:47:02] Speaker 06:
Well, I'm also representing the postcard, but yes, Bologna has no discretion over navigation safety.

[01:47:07] Speaker 05:
No, what you just said.

[01:47:07] Speaker 05:
I mean, that's why I would just...

[01:47:11] Speaker 05:
I know you're doing that today, but my point is if there's supposed to be a subsequent final determination from Coast Guard and then the people want to challenge that determination, I thought your answer was that, well, they'll just have to do that as part of a challenge to the Bureau's final authorization of construction and operation.

[01:47:36] Speaker 05:
Since the Bureau doesn't have any decision-making authority with respect to what those terms are, how could the right remedy ever be imposed?

[01:47:46] Speaker 06:
The process that I'm envisioning is like the process in the Escondido case, in which the Federal Power Commission had to provide terms and conditions to the Secretary.

[01:47:56] Speaker 06:
And Congress specifically relied on that process as a model for this one.

[01:48:00] Speaker 06:
So as in the Escondido case, the Secretary

[01:48:04] Speaker 05:
Acting there's two different statutes going on here, which you didn't have an Escondido, right?

[01:48:10] Speaker 05:
Bureau is operating under the Outer Continental Shelf Lands Act But this is under the Marine Transportation Act And so you have a distinct actor under a distinct statute Isn't that different?

[01:48:26] Speaker 06:
Well, I would argue then that it's still Bowen's action that is reviewable.

[01:48:30] Speaker 06:
It's reviewable under the APA.

[01:48:31] Speaker 06:
That action can't be arbitrary or capricious or not in accordance with law.

[01:48:35] Speaker 06:
And Section 414 provides one of the relevant laws that would populate that standard.

[01:48:39] Speaker 05:
OK, so then the Coast Guard itself can't be a defendant.

[01:48:41] Speaker 06:
That's our view.

[01:48:43] Speaker 08:
Can you educate me about the division of jurisdiction here?

[01:48:48] Speaker 08:
This is within the three mile limit, isn't it?

[01:48:52] Speaker 08:
The project?

[01:48:53] Speaker 06:
Yes, I believe so.

[01:48:54] Speaker 08:
Okay.

[01:48:55] Speaker 08:
And who has the regulatory authority within the three mile limit?

[01:49:03] Speaker 06:
Over navigation?

[01:49:04] Speaker 08:
Over navigation.

[01:49:05] Speaker 06:
I believe it's the Coast Guard.

[01:49:07] Speaker 08:
Not the states?

[01:49:09] Speaker 01:
I thought the project was 30 miles out.

[01:49:12] Speaker 06:
I'm sorry.

[01:49:16] Speaker 06:
I'm sorry, Judge Randolph.

[01:49:16] Speaker 06:
I don't know the answer to your question.

[01:49:18] Speaker 06:
It's something that we haven't briefed.

[01:49:20] Speaker 08:
Yeah, I know.

[01:49:21] Speaker 08:
There's another zone beyond the three-mile limit out to, what, 25 miles.

[01:49:26] Speaker 08:
I forget what it's called.

[01:49:29] Speaker 08:
But my understanding was that within the three-mile limit, if this is within the three-mile limit, it was the states that have the authority to control that.

[01:49:39] Speaker 08:
I just wondered.

[01:49:41] Speaker 06:
I'm sure they can clear that up, but I would make the point that the record reflects extensive negotiations and consultations between the federal agencies here

[01:49:57] Speaker 06:
and the state agencies that are involved, they consulted on NHPA issues, they commented on the draft EIS, and so to the extent there may be a state jurisdiction issue here, I think the record will show that that was resolved in the administrative process.

[01:50:09] Speaker 08:
And the United States claims title to the seabed?

[01:50:12] Speaker 06:
That's right.

[01:50:13] Speaker 08:
There?

[01:50:14] Speaker 06:
That's right, and under Oxford, that's our authority.

[01:50:16] Speaker 08:
See, that's a different question than navigation regulation.

[01:50:20] Speaker 08:
That's why I asked.

[01:50:21] Speaker 08:
Okay.

[01:50:21] Speaker 06:
I see.

[01:50:23] Speaker 06:
Thank you.

[01:50:23] Speaker 06:
Unless the Court has further questions, we'll ask the Judgement that it should be affirmed.

[01:50:26] Speaker 05:
Thank you, and thank you for putting up with the interruption.

[01:50:32] Speaker 04:
Mr. Marrero?

[01:50:39] Speaker 09:
Please support Chris Marrero for Cape Wind.

[01:50:43] Speaker 09:
Judge Randolph, to your question, the project's more than three miles, and the federal government has jurisdiction.

[01:50:50] Speaker 08:
It's beyond three miles?

[01:50:52] Speaker 08:
Yes.

[01:50:52] Speaker 08:
Oh, OK.

[01:50:52] Speaker 08:
Well, that clears it up.

[01:50:54] Speaker 08:
OK.

[01:50:54] Speaker 09:
Yes.

[01:50:55] Speaker 09:
I'd like to address the Migratory Bird Act issues here.

[01:51:04] Speaker 09:
And I'd like to state unequivocally that the lease requires

[01:51:10] Speaker 09:
that Cape Wind comply with all laws, and that Cape Wind intends to apply with all laws, and if that requires a migratory... Let's not say if.

[01:51:22] Speaker 05:
They've told you... Don't give me if that requires a permit.

[01:51:25] Speaker 05:
The federal government has now said it does require a permit.

[01:51:27] Speaker 05:
Do you agree?

[01:51:28] Speaker 09:
Well, the regulations for a permit are currently being developed.

[01:51:34] Speaker 05:
So once they are... Do you agree that you're obligated to get a permit?

[01:51:37] Speaker 05:
Yes.

[01:51:37] Speaker 05:
Not a question of time.

[01:51:38] Speaker 05:
Do you agree you're obligated to get a permit before the on switch?

[01:51:43] Speaker 09:
Yes.

[01:51:43] Speaker 09:
And construction isn't even what arrives.

[01:51:47] Speaker 09:
The operations are years off.

[01:51:51] Speaker 05:
Right.

[01:51:52] Speaker 05:
Well, construction was your stay.

[01:51:53] Speaker 05:
I mean, you asked for the two-year stay.

[01:51:55] Speaker 09:
Well, that's correct, but in any event, when the operation is years away.

[01:52:03] Speaker 08:
When do you think the time is right for you to be required to get a permit?

[01:52:10] Speaker 09:
As soon as the government tells us that we have to get a permit.

[01:52:19] Speaker 05:
Well, they've said they've told you that in the least when they said comply with the law.

[01:52:23] Speaker 09:
Comply with the laws, yes, but there's no permit.

[01:52:27] Speaker 09:
The problem is, Your Honor, is that there is no permit scheme at the moment for this.

[01:52:36] Speaker 09:
And as soon as there is a scheme, we will get a permit.

[01:52:41] Speaker 08:
What do you mean by that?

[01:52:42] Speaker 08:
There's no permit scheme.

[01:52:45] Speaker 09:
The permits for the Migratory Buried Treaty Act for this are in rulemaking at the moment.

[01:52:56] Speaker 05:
Well, it doesn't mean you can't submit your application.

[01:52:58] Speaker 05:
That's correct.

[01:52:59] Speaker 05:
They may think that their rulemaking isn't going to change their mind on whether they can issue a decision or not.

[01:53:05] Speaker 05:
But your ability to apply for a permit is not impaired.

[01:53:10] Speaker 09:
We will apply for a permit if a permit's required.

[01:53:16] Speaker 05:
A permit is required.

[01:53:17] Speaker 05:
The Justice Department will do that.

[01:53:18] Speaker 09:
Well, then we will apply for it.

[01:53:21] Speaker 08:
Are you suggesting that perhaps there may be new regulations or a new law that is specific to this project with respect to the migratory bird treaty?

[01:53:32] Speaker 09:
Not specific to this project.

[01:53:34] Speaker 08:
Specific to wind turbines on offshore?

[01:53:39] Speaker 09:
Your Honor, I don't know whether it's specific to wind turbines, but yes, a permit program to take migratory birds.

[01:53:49] Speaker 01:
The rulemaking had to do with renewable energy projects?

[01:53:53] Speaker 01:
Is that the way it was couched?

[01:53:55] Speaker 09:
I am unsure of that, Your Honor.

[01:53:59] Speaker 08:
That's EPA's jurisdiction, isn't it?

[01:54:01] Speaker 08:
Sorry?

[01:54:03] Speaker 08:
I said that's EPA's jurisdiction.

[01:54:06] Speaker 09:
No, that's Fish and Wildlife Services jurisdiction.

[01:54:12] Speaker 08:
For migratory birds.

[01:54:13] Speaker 08:
Yes.

[01:54:14] Speaker 09:
So plaintiff's central case here is Glickman, but the district court grounded its decision in Glickman, and it held

[01:54:32] Speaker 09:
that in Glickman, what matters is whether someone is killed or attempted to kill a migratory bird, not whether someone is an enabler, which is what really the plaintiffs are arguing here.

[01:54:48] Speaker 05:
If Uncle Joe... I'm not sure why we're going to talk about... I mean, everyone's agreed that you're going to have to get a permit before you operate.

[01:54:54] Speaker 05:
I'm not sure why we need to talk about...

[01:54:56] Speaker 05:
Help me to understand.

[01:54:59] Speaker 05:
I'm not saying you shouldn't.

[01:55:00] Speaker 05:
I don't mean to tell you what you want to focus on for your argument.

[01:55:03] Speaker 05:
I'm just not sure why we're going back to revisit that, since it now seems to be agreed that you have to get a permit.

[01:55:09] Speaker 09:
Let me start with a fundamental premise here, which is the district court's finding.

[01:55:17] Speaker 09:
No such taking is yet reasonably certain.

[01:55:23] Speaker 09:
And that's supported by the record.

[01:55:27] Speaker 09:
What the government did here is a risk assessment, probability analysis.

[01:55:32] Speaker 09:
There is no certainty here that birds will be taken.

[01:55:37] Speaker 05:
Is that because you're not sure you're going to start operation?

[01:55:40] Speaker 05:
Or are you saying that even when you're fully operating, you think there's no risk that birds will be taken?

[01:55:45] Speaker 09:
No one knows, Your Honor.

[01:55:46] Speaker 09:
That's the key.

[01:55:48] Speaker 05:
The government just told me they don't dispute that thousands of birds will be taken.

[01:55:52] Speaker 09:
That's not what the record says.

[01:55:55] Speaker 09:
And that's not what Judge Walton found.

[01:55:59] Speaker 09:
What Judge Walton found is that no such taking is yet reasonably certain.

[01:56:05] Speaker 05:
No, but that's not disputing that it's going to happen.

[01:56:06] Speaker 05:
That's just a question of timing when it's going to happen.

[01:56:09] Speaker 05:
That doesn't dispute that it's going to happen unless you don't come online.

[01:56:12] Speaker 05:
I assume you're not.

[01:56:13] Speaker 09:
No.

[01:56:14] Speaker 09:
Even if we come online, the record is clear on this.

[01:56:19] Speaker 09:
There is no certainty that migratory birds will be taken.

[01:56:25] Speaker 09:
The record, the EIS talks about the potential.

[01:56:32] Speaker 09:
The BIAP says it's likely.

[01:56:35] Speaker 09:
It doesn't say it's highly likely.

[01:56:37] Speaker 09:
It doesn't say more likely than not.

[01:56:39] Speaker 09:
And it certainly doesn't say certain.

[01:56:42] Speaker 09:
This is a risk assessment approach.

[01:56:43] Speaker 09:
And what we're doing here is we have an adaptive management plan.

[01:56:48] Speaker 09:
that fish and wildlife overseas, and that is in fact what will be guiding us.

[01:56:58] Speaker 09:
Nobody knows whether the birds fly too high, whether they fly too low, whether they will be in the area.

[01:57:04] Speaker 09:
The piping clovers are shorebirds.

[01:57:08] Speaker 09:
And so the case law on this

[01:57:13] Speaker 09:
is that liability requires deliberate acts that directly cause the death of a bird.

[01:57:23] Speaker 09:
And our position is that this statute doesn't apply to enablers, and Judge Walton was correct in his decision.

[01:57:36] Speaker 04:
You guys have questions?

[01:57:38] Speaker 04:
All right, thank you.

[01:57:39] Speaker 09:
May I address one other issue?

[01:57:41] Speaker 04:
Yeah, one minute.

[01:57:42] Speaker 09:
Yes.

[01:57:43] Speaker 09:
I'd like to address the fish and wildlife remand for a moment.

[01:57:50] Speaker 09:
First of all, what the government stated is that the independent rationale that confirmed our prior decision

[01:58:05] Speaker 09:
And the rest of it is surplus.

[01:58:09] Speaker 09:
It's it's it's they confirm.

[01:58:11] Speaker 09:
Judge Walton told them told the Fish and Wildlife Service to confirm whether or not they didn't a independent evaluation.

[01:58:22] Speaker 09:
And that's what they did.

[01:58:25] Speaker 09:
So our position is here that they, in fact, complied with the remand order.

[01:58:35] Speaker 05:
All right.

[01:58:35] Speaker 05:
Thank you.

[01:58:35] Speaker 09:
And can I just say one more thing?

[01:58:39] Speaker 05:
Very quickly.

[01:58:39] Speaker 05:
Please.

[01:58:40] Speaker 05:
I think we understand your position on this issue.

[01:58:43] Speaker 09:
Thank you.

[01:58:44] Speaker 09:
There is no, the incidental take statement, there's no right to public comment on that.

[01:58:52] Speaker 04:
Thank you.

[01:58:52] Speaker 09:
Thank you.

[01:58:56] Speaker 04:
All right.

[01:58:57] Speaker 04:
Mr. Sharpe and Mr. Glitz, you know, you're both doing rebuttal on your issues.

[01:59:00] Speaker 04:
Is that the claim?

[01:59:02] Speaker 02:
I was wondering if you could just give me the court's recitation.

[01:59:04] Speaker 05:
No, Beth, that's fine.

[01:59:05] Speaker 05:
We'll give you, I know you're both out of time.

[01:59:06] Speaker 05:
We'll give you each two minutes.

[01:59:10] Speaker 07:
Thank you very much.

[01:59:11] Speaker 07:
I have a brief.

[01:59:12] Speaker 07:
First of all, the Coast Guard is a proper party in the District Court.

[01:59:16] Speaker 07:
Reliance in the District Court on the Escondido case with the Federal Power Act seems to be misplaced.

[01:59:23] Speaker 07:
In that case,

[01:59:25] Speaker 07:
The Supreme Court in Escondido would not allow a collateral attack on the Fish and Wildlife Service because there was this exclusive review of FERC orders in the Court of Appeals.

[01:59:33] Speaker 07:
And if they could challenge the Fish and Wildlife consultation or conditions in district court, it would undermine that.

[01:59:40] Speaker 07:
That doesn't exist here.

[01:59:41] Speaker 07:
So both BOEM and Coast Guard are proper parties.

[01:59:46] Speaker 05:
The second point I would make is that- The fact that there's two different statutes operating here?

[01:59:50] Speaker 05:
Well, absolutely.

[01:59:51] Speaker 05:
Well, final agency action under one statute by one agency.

[01:59:54] Speaker 07:
OK.

[01:59:55] Speaker 07:
The second point I would make is, on virtually every issue required by a federal agency here, the result has been to kick the can down the road.

[02:00:08] Speaker 07:
With respect to Coast Guard, the determinations we believe the Act requires were not made at the time they were required to be made.

[02:00:15] Speaker 07:
In the case of the decisions by the BOEM regarding safety under the Outer Continental Shelf Plans Act, the studies that were never done were to determine whether you could safely erect the 440-foot monopole at the site it was then designed to be placed at.

[02:00:33] Speaker 07:
If you don't do those studies, then you cannot determine whether that could safely be erected.

[02:00:39] Speaker 07:
On this record, those studies have not been done.

[02:00:43] Speaker 07:
On this record, those studies did not detect whether there was archaeological and cultural resources at the location of the monopoles before consultation was concluded in the National Historic Preservation Act.

[02:00:55] Speaker 07:
On this record, those studies were not done to inform the NEPA decisions or make public disclosure.

[02:01:00] Speaker 07:
Thank you.

[02:01:10] Speaker 05:
I know you wanted to do a couple of citations, but can you respond to Mr. Mararo's argument that there's no public comment allowed on the incidental take determination?

[02:01:19] Speaker 03:
Your Honor, our position is that the obligation to consider the best available science applies to any determination

[02:01:26] Speaker 03:
whatever the source of that information, and I think that's also clear from Bennett v. Speer, the Supreme Court's interpretation of that language.

[02:01:33] Speaker 03:
The government never came back and said, we don't consider this to be the best available science.

[02:01:38] Speaker 03:
And as Your Honor has pointed out, at some length, they did reopen the record to consider other, more recent evidence.

[02:01:45] Speaker 03:
So that's where our argument comes into play, is based upon the statutory obligation, as well as the general APA principle.

[02:01:51] Speaker 03:
that if you reopen a record, you at least have to acknowledge evidence that bears upon your determination.

[02:01:57] Speaker 03:
If I could just give a few citations in response to our colleagues' arguments.

[02:02:04] Speaker 03:
With respect to the Fish and Wildlife Service making a determination in the first instance, not only was this a new decision-maker, as Judge Wilkins pointed out, that didn't even have any role to play in 2008, but the decision-makers that did have a role

[02:02:17] Speaker 03:
point blank told the Fish and Wildlife Service biologists not to make a decision at that time, and that's at pages 305 and 1852 of the Joint Appendix, where the regional director at that point specifically said, do not make your own determinations, simply delegate this authority to Bohm and Cape Wind.

[02:02:36] Speaker 03:
With regard to whether we somehow waived our argument on this score, not only did we, of course, win on the argument that the agency hadn't even made the decision,

[02:02:46] Speaker 03:
Therefore, we could not possibly have waived an argument about the rationale, but at pages 311 through 12 and 126 through 27 of the Joint Appendix, those are our opening summary judgment briefs where we specifically pointed to the 2010 analysis by Dr. Lesser that the service never took into consideration, as well as pointed out the rationale behind that measure for minimizing

[02:03:08] Speaker 03:
bird impacts.

[02:03:08] Speaker 03:
With regard to Judge Randolph's question about impacts on a single member of an endangered species, at page 2342 of the Joint Appendix, even Bohm said the mortality of a single rosea tern would be considered a major impact on that species because of the depleted nature of the species.

[02:03:25] Speaker 08:
You were permitted to amend your complaint.

[02:03:29] Speaker 08:
I'm not clear about procedurally when that occurred and why.

[02:03:33] Speaker 03:
That occurred, Your Honor, because we were trying to take every step possible to make sure that we were making the arguments that we could make in light of the new decision.

[02:03:41] Speaker 03:
So we sought permission and received permission from Judge Walton to file a supplemental complaint that challenged the new decision on every ground that we are arguing in this Court.

[02:03:51] Speaker 03:
And that's a detailed supplemental complaint which took on the arbitrary and capricious nature of the decision based upon the new rationale as well as the MBAT argument that we had preserved as well as every other argument based upon the new decision.

[02:04:06] Speaker 03:
On the MBTA point, everyone seems to be in agreement today that they need to get a permit before they start killing birds.

[02:04:14] Speaker 03:
And I would simply point out that in response to Mr. Moraro's position that it's not entirely clear, if you look at, these are several citations from the appendix 2128, 3395, 8849, 1969,

[02:04:32] Speaker 03:
1972, 2322, these are all acknowledgments by BOEM and or the Fish and Wildlife Service that many birds will be taken in violation of the MBTA.

[02:04:43] Speaker 08:
Is your argument solely directed with respect to the permit question?

[02:04:48] Speaker 08:
I'm not entirely clear.

[02:04:50] Speaker 08:
Is it solely directed to the federal agency having to get a permit or is it

[02:04:54] Speaker 08:
directed to both parties?

[02:04:58] Speaker 03:
Your Honor, our position all along has been that either federal agency has occurred in another instance recently where a regulatory agency got its own permit or conditioning compliance by the applicant.

[02:05:12] Speaker 03:
And so, in fact, the pages 14 and 39 of our brief, notwithstanding the government's characterization of our position, we said either of those

[02:05:20] Speaker 03:
would satisfy the permitting obligation.

[02:05:22] Speaker 08:
Well, hasn't the conditioning occurred when they're required to comply with federal law?

[02:05:28] Speaker 03:
No, Your Honor, because in contrast to virtually every other statute where they were quite explicit

[02:05:34] Speaker 03:
For example, the MMPA example that Judge Millett asked about.

[02:05:37] Speaker 03:
They said, you must get a permit under the MMPA.

[02:05:40] Speaker 03:
Here, not only did they not say that about the MBTA, but at pages 3408 of the Joint Appendix, they conditioned it on something very different.

[02:05:48] Speaker 03:
And that was on the development of an avian and bat monitoring plan.

[02:05:52] Speaker 03:
which is not a permit.

[02:05:54] Speaker 03:
They admit it's not a permit under the act.

[02:05:56] Speaker 03:
Instead, it's a plan to monitor for impacts after they occur.

[02:06:00] Speaker 03:
So if everyone's now conceding in contrast to what the record shows as to what the condition was, then I respectfully submit the appropriate response by this court is to order a remand for this to go back to the agency to make that an explicit condition of the permit that they must get a permit before operation.

[02:06:17] Speaker 03:
And I think that would address the problem.

[02:06:19] Speaker 03:
But on this record, they conditioned it on something very different.

[02:06:22] Speaker 03:
which is not a permit requirement.

[02:06:23] Speaker 08:
Before operation, not before construction?

[02:06:25] Speaker 03:
Well, I think actually before construction would be the most appropriate approach because of the reasons your honor gave, which is that we want to make sure we're constructing in a manner that provides for maximum implementation of the MBTA purpose.

[02:06:38] Speaker 05:
Well, that's actually a question I had is,

[02:06:41] Speaker 05:
You've given the sites, but is there anything in the record that indicates that construction itself could result in some incidental taking of birds even without, even before they're turned on?

[02:06:53] Speaker 05:
Because I've got to figure once these turbines start going up, you start having some risk.

[02:06:57] Speaker 05:
I didn't see the arguments in that term.

[02:06:59] Speaker 05:
So is it really only operation that you're concerned about?

[02:07:02] Speaker 03:
We certainly were concerned about even constructing the turbines could have an impact.

[02:07:07] Speaker 03:
I think what we were trying to do was frame the argument in terms of the clearest, most undeniable kind of take.

[02:07:13] Speaker 05:
Is there anything in the record where you have that?

[02:07:15] Speaker 05:
Because there is this whole thing about timing.

[02:07:17] Speaker 05:
So is there anything in the record?

[02:07:19] Speaker 05:
that were you sought or argued that takings would occur as a result of the construction process itself?

[02:07:26] Speaker 03:
Well, certainly comments in the record made that point that we submitted.

[02:07:30] Speaker 03:
That has not been candidly the focus that we've made in our briefs, because we were trying to focus on what we thought the clearest example of take would be.

[02:07:38] Speaker 03:
But certainly many comments, including Fish and Wildlife Service comments to Bo,

[02:07:43] Speaker 03:
expressed concerns about the placement of turbines and how building turbines itself could result in collisions.

[02:07:49] Speaker 05:
And if I could give, Your Honor, just one final response is... If you could submit those record citations after argument, that would be helpful.

[02:07:55] Speaker ?:
Okay.

[02:08:01] Speaker 03:
And there was just the final point, and there was a question from I think several members of the court about this new rulemaking which is occurring.

[02:08:10] Speaker 03:
It's a rulemaking by the Fish and Wildlife Service, and the notice that was put out was a notice to prepare a programmatic environmental impact statement.

[02:08:17] Speaker 03:
But the critical point is that at pages 1703 and 1705 of the Joint Appendix,

[02:08:23] Speaker 03:
The Solicitor's Office of the Interior Department specifically acknowledged that the existing permitting regime, which includes special use permits, could actually be something that would be brought into play for this project without any new permitting regime.

[02:08:38] Speaker 03:
And in fact, as we've pointed out, that has been used by other regulatory agencies.

[02:08:44] Speaker 03:
It's great if the government develops its new permitting scheme, but as the court also pointed out in the Glickman case, that's up to the Fish and Wildlife Service.

[02:08:51] Speaker 03:
That doesn't displace the obligation to comply with the statute and already is a mechanism for doing that for a project like this one.

[02:08:58] Speaker 04:
Thank you.

[02:08:59] Speaker 03:
Thank you, Your Honor.

[02:09:00] Speaker 04:
The case will be submitted.