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Case number 19-1066, Schaeffer and Freeman Lakes Environment Conservation Corporation et al.

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Petitioners versus Federal Energy Regulatory Commission.

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Mr. Fleming for the petitioners, Ms.

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Rylender for the respondent, Mr. Heminger for the intervener.

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Good morning, counsel.

[00:00:20] Speaker 01:
Good morning.

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Please proceed.

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May it please the court.

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My name is Robert Fleming.

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I represent the petitioners.

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in a case that unfortunately pits the interest of my clients against the perception that they do not care to protect endangered species and wildlife.

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So I want to say at the start that that is not the case.

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What they object to is being forced to bear a burden

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for protecting wildlife that is not threatened by any act or artifice of man, but by forces of nature.

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So I begin with the two arguments I want to touch on regarding the commission before I go on to the Fish and Wildlife Service.

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First,

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The commission misinterpreted the Endangered Species Act to give the Fish and Wildlife Service discretion to force a person, in this case Northern Indiana Public Service Company, to provide river flows in excess of what nature would provide.

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That's the argument we made in our brief.

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The commission did not respond to that argument and the service does not apparently contest the argument.

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That is that they don't contend they had the discretion to improve upon nature.

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They simply contend that what they did mimics nature.

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But this threshold question, there's very little law.

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The only case we've been able to find is the Alabama v. Corps of Engineers case, 2006 case from the Northern District of Alabama that directly addresses the question of whether

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endangered species mortality resulting from forces of nature is take within the meaning of the Endangered Species Act and that court said it is not.

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This court should, I believe, clearly state the principle based on the plain language of the Endangered Species Act that

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that it authorized the Fish and Wildlife Service to regulate acts or artifices of man, but not acts of nature.

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Well, let me ask you, I thought the argument turned, and maybe I'm incorrect, that first, you thought FERC erred in deferring to the Fish and Wildlife Service for several reasons.

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And then secondly,

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that the Fish and Wildlife Services inadequately responded to the expert evidence that your clients submitted.

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And there were other arguments, but that was a thrust of it, wasn't it?

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Those are both arguments we make, Your Honor, but right now I'm dealing with what I believe to be a threshold issue.

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All right.

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And that is,

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because what the commission said is we don't believe that what Fish and Wildlife Service did was in excess of what nature would provide, but even if we did, even if we did, we hold that the Fish and Wildlife Service has that discretion.

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Under the law, our position is they have no such discretion, and that's the issue I'm addressing.

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Now, we also argue that that's not a... Is that really the way you briefed this case?

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I'm like Judge Rogers.

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I'm not quite recognizing that as being where I thought the stress was in this case.

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I'm sorry?

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I'm sorry.

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You're not recognizing your argument as being what you briefed in this case.

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I'm like Judge Rogers.

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I thought we were

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They're litigating over whether there was error in deferring.

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There, yes, we are, Your Honor.

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And one reason they deferred was their belief that fish and wildlife had the discretion to improve upon nature.

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And that's probably they said, even according to your quote that you just gave, they said, that's not what we understand the Fish and Wildlife Service to be doing.

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Even if they did, but that's a even if.

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But their upfront holding was that's not what we understand the Fish and Wildlife Service to be doing, so why don't we just take them at their word.

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Yes, Your Honor, and I'm certainly going to address that.

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But the only other point I wanted to make about the commission before I moved to Fish and Wildlife is that they misinterpreted and misapplied the regulation under the Endangered Species Act that says that a reasonable and prudent measure to avoid incidental take can make only a minor change or minor changes to

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the proposed agency action.

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Let me first say what's the same about the staff's alternative proposal and Fish and Wildlife's technical assistance letter program.

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What's the same is that they both use the same trigger to establish a

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an abnormal flow event, and they both say that generation must cease at both dams as soon as that trigger is reached so that whatever variance or unevenness in flow might result from generating power goes away during that event.

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But where they differ is a broad gulf.

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Since 1925, when Oakdale Dam went into operation, the other upstream dam went in operation two years earlier.

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So as we speak today, more than 90 years,

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They've operated in what's generally known as run-of-river mode and maintained constant elevations.

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That was true before Northern Indiana Public Service bought the project in 1944.

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It was true before the commission first licensed the project in 2007.

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But instead of continuing with a run-of-river,

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As the commission staff said that they believe would best duplicate natural flow conditions, we go to a procedure that the Fish and Wildlife Service imposed that can result in drawdown of Lake Freeman by as much as 12.8 feet.

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That's in the application.

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The application acknowledges.

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that can happen.

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Lake Freeman is a wide, shallow lake with an average depth of 16 feet.

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And that kind of drawdown, or even lesser drawdowns, are significant.

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I had put this in the joint appendix, but I would refer the court to document number 416 in the commission record.

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at pages 407 through 410.

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That is a public comment from a marina operator on the lake addressing what happened when there was a drawdown in 2014.

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The public comment says it was 23 inches.

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I believe the news reports of the time say 19 inches.

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And it may be somewhere in that range.

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And what's important is the comment includes photographs that show what the result of a drawdown of 19 to 23 inches is on the lake.

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and I will tell you that as of last week there is another flow flow event underway and the lake is down almost six feet.

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I go through that only to say that a scheme that maintains the elevation as it has been maintained for 95 years is not minorly changed by a scheme that allows

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the lake to be drawn down as much as 12.8 feet.

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In no sense, logic, lexicology, or law.

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So what you would say this case is really about is whether that is a minor change.

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As addressed to the commission, yes sir.

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Addressed to this court, you would say there is an error below

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in defining or applying the requirement of a minor or the limitation to a minor change?

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That's right your honor I don't believe that the Fish and Wildlife Service had the authority to impose it and I don't believe that we don't believe that the commission was required to follow it because it's a major change not a minor change.

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Now

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Moving to where the real thrust of our So just tell me what it what rule of law are we supposed to apply because here both the commission and the service both concluded Unfortunately on its own that it was not a major change.

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What is the legal test?

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You would want that you argued below and that you would want us to apply To the difference between major minor.

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What did you argue below?

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How do we know what's major?

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What's minor in this world?

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I argue at the same time I'm arguing today that they are radically opposed views.

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One not just changes the other, it does away with the other.

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It completely changes.

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And you look at the language of the regulation, it says- But if you had opposing views, but it was an opposition over a relatively small thing, would it automatically make it minor just because they were in opposition?

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No, it's I can't just see that one displays the other in this in this opposing views thing.

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So you have to look at the proposed agency action, which is to maintain the lake level, stop all generation, and then the lakes would remain at the levels that they were when that went into effect, and whatever came in to the system would flow out of the system, and that would mimic nature.

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So what standard of review would you say we have to apply in determining whether they're in error

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in the application or definition of the word minor?

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Your honor, the word minor is not defined in the regulations.

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That's not quite right.

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What standard of review would you say we would apply?

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De novo because it's a question of law.

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De novo is a question of law as to what the bounds are of the application of the word minor

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That's correct, Your Honor.

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And there is so little law on this subject.

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If it is a question of law, then you say we have a Chevron standard to apply?

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I'm still trying to find out what standard we're trying to apply here.

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If it's a question of law, and we don't do that, then no vote.

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It's an agency interpretation.

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Then we apply Chevron, though.

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And you would decide whether

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It, given all the circumstances, is a reasonable interpretation, and we submit that in no way can it be deemed a reasonable interpretation of the plain language of the regulations.

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Because?

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It can't just be that they had oppositional views.

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So if you could finish that sentence, it's not reasonable because?

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Because words have meaning.

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Matter has to mean something.

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Okay, what does it mean, as opposed to, yes, I get that it has to mean something.

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It is to read, should be read in the context of the language that precedes it, cannot change the basic design and other things.

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Well, the basic design of the proposed agency action is a maintain elevation run of river program with generation stopped.

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Well, you change the basic design if you say, no, we're not going to do run-of-river.

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We're going to draw down the lake as much as 12.8 feet.

[00:14:08] Speaker 07:
Well, if it's all a question of, the difficulty here is it seems a bit of perspective, right?

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They're going to have to be, they're releasing water already.

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They're always releasing water.

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And if under one rule, they release more water than the other, is that changing the fundamental operation?

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Your Honor, we submit that it is, and I can think of no way that it's logically, lexicologically, or legally not

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not a major change or more than a minor change when it completely changes the design of the approach.

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I understand your label here and your genuineness in this argument.

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I don't question that.

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I'm just trying to understand.

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We have to write opinions, right?

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If we were to rule for you, we have to write an opinion.

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We'd have to write an opinion that would say, here's what makes this, in your view, not minor.

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And I think we've established it can't be that we could go, well, this was just their point of disagreement.

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Because that doesn't make it minor by itself.

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And then you said, well, you kind of re-articulated the same point saying, well, FERC wanted to do run of the river, turn generation off, and the service didn't.

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But that's just another way of saying that this was the point of disagreement.

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They had point of disagreement about this.

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And I thought we'd already agreed that can't be the definition of minor, because points of disagreement can be minor, to borrow a word.

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And so how do we know that the change and the increase, I mean, what's going to happen is they're going to increase the amount of water going down under one or being released under one scenario and under the service scenario more than they would under the FERC scenario.

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So how do we know when a release of water, an increased release of water becomes a change of the design of the program since they're releasing water to maintain muscles as best they can.

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under both programs or both plans?

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Yes.

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Well, the way you tell is that it's not a minor change to take something that's been in place for 95 years and the muscles have lived through it and change it such that it doesn't exist anymore and we have a completely different program.

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That is, draw down the lake, use the lake for supplemental water.

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But your honor, I think this will be in more context

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when I address what the Fish and Wildlife Service did to arrive at their program.

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So you are saying that, as I understand it then, that looking at the purpose, the ultimate purpose, that that is inconsistent with the text of the regulation

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in the sense that it can't be enough that anything that preserves the muscles would be a minor change.

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I'm not saying that at all.

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Well, I understand that, but I'm trying to understand how the opinion is written.

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Because Ferg said same purpose, run of river,

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But we have to preserve the muscles against incidental take.

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All right?

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And you're saying that's not enough.

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And you're saying text, a few other things.

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And so I'm trying to translate that.

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I mean, what I was trying to understand in this case is why is it so significant that the lake

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is treated so differently under the two programs?

[00:18:20] Speaker 01:
Your Honor, the phrase in the regulation starts off, it cannot, may change the, I'm not sure the word is major, but the next word is design, and it goes on several other things, and it concludes with, and may make only minor changes.

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They are different in the design approach, diametrically opposed.

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So it is the plain text of the language that I ask you to interpret and believe that you will include

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that it has no meaning at all if this is not a major change instead of a minor change.

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If um if the service plan had said this because the prior plan said the lake um maintain the lake level within a range of sort of up or down I guess three inches either way.

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That's correct.

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Okay and if the service plan had changed that to four inches either way would that be a major or minor

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I'm assuming the opposite of minor is major, but maybe that's my mistake.

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Would that be minor or not?

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Three inches versus four inches, I would say was minor.

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Three inches versus as much as 12.8 feet in a current, almost six feet is major.

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And you know, we, of course, just have to then grapple with one to the inches across the line from not minor into minor.

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And I'm just trying to come up with a legal rule, not a number.

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We wouldn't write an opinion saying, X inches is too much.

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Well, as we ask in our brief, there is very little law on this.

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And these litigants and others in the same position will be well-served if the court will give guidance on that.

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And we would be well-served to get some... Right.

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And we're trying to be well-served by hearing from you how the opinion would be written, adopting a legal rule, not just saying, my client wins.

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How will we know this one is not minor, but in the next case, when it's a bit different from this, it is minor?

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By the magnitude, by the fact that it changes the basic design, which is another thing of regulation.

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Changes the basic design how?

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changes the basic design from a run of river mode with ceased generation to a we're going to use Lake Freeman for supplemental water to increase.

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But if the service were to tell me when it gets up that they are using run of river mode, you guys have a disagreement about it, but they are continuing to use run of river mode.

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And so then it's not just to maintain mussels at all cost.

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I don't think they would say that's what they're doing.

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And it's simply how we ensure the run of the river where the mussels are is maintained.

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What would happen then?

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I perhaps got this off the rails and would like to move on to why the Forest Service's

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I mean, the Fish and Wildlife Service's approximation of natural low flow is not only best available science, but unsupported by substantial evidence.

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They began by when they encountered muscle mortality downstream of the dam in 2012, assuming that take was caused by Oakdale Dam.

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They chose to ignore the fact that upstream of both lakes and both dams, the conditions were just as bad in terms of low flow and that mussels there, including threatened rabbit's foot mussels, were dying.

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Now, if it is happening contemporaneously upstream of this whole project where nothing can be influenced by lakes or dams, how can they

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determine that downstream it's because of the dam.

[00:22:36] Speaker 06:
Is that an argument you made on rehearing?

[00:22:38] Speaker 01:
I'm sorry?

[00:22:39] Speaker 06:
Was that an argument you made on rehearing before FERC?

[00:22:43] Speaker 01:
Yes.

[00:22:45] Speaker 07:
You did?

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Can you cite where it is in your rehearing petition?

[00:22:48] Speaker 07:
Or if not now on rebuttal, I don't want to distract you right now.

[00:22:52] Speaker 01:
Okay, I don't have the rehearing petition right at hand.

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They then chose linear scaling as the method for low flow.

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And it is helpful to understand the sequence of events by which that came to be.

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And I'm going to go through them and give you some joint appendix citations because a series of emails, the first on October 23, 2013, joint appendix 326.

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Forrest Clark, who did the linear scaling calculations and appears to have been the primary author of the biological opinion, wrote to a hydrologist at USGS.

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and said, what I hope to determine is whether or not linear scaling is appropriate to use to extrapolate low flows for in it seems it is traditionally used for flood flows.

[00:24:01] Speaker 01:
He concluded, forgive the pun, but I'm way out of my depth here and would appreciate any help out.

[00:24:09] Speaker 01:
You can see his response on joint appendix 327.

[00:24:13] Speaker 01:
The hydrologist said that it's problematic to determine low flows or project low flows with linear scaling.

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And he gave geological reasons why that is the case.

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Some stretches of river are called losing stretches, where river flow runs into groundwater.

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Some are called gaining stretches.

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where groundwater goes into river flow, those things don't show up at average or high flows, but they begin to create all kinds of inconsistencies at low flows.

[00:24:53] Speaker 01:
So Mr. Pruitt suggested to his boss

[00:25:00] Speaker 01:
on January 31st, 2014, joint appendix 168, that we should consider identifying a service hydrologist to work with us.

[00:25:16] Speaker 01:
There is only a little evidence that they ever did that, and I will get to it, but that makes sense because they are trying to make a hydrological decision.

[00:25:29] Speaker 01:
They are put in charge of this because they are fish and wildlife biologists.

[00:25:36] Speaker 01:
But so far as the record reflects, none of them were hydrologists.

[00:25:42] Speaker 01:
And this is a hydrological question.

[00:25:45] Speaker 07:
But they did consult with some hydrologists.

[00:25:48] Speaker 01:
Yes, Your Honor, I think it will make more sense if I deal with that in order.

[00:25:52] Speaker 01:
But they did.

[00:25:53] Speaker 01:
This is the first time when they wrote to the guy and asked him about low flow versus high flow.

[00:26:02] Speaker 01:
Now, the next three communications took place on the same day, May 13, 2014.

[00:26:16] Speaker 01:
Mr. Clark, again, the Fish and Wildlife Service guy, writes to USGS and said, beginning on 17 August 2010 and continuing through the end of October at least, the discharge at ORA, that's the ORA gauge, consistently larger than at Winamac, the downstream gauge, can you provide a reason for this?

[00:26:41] Speaker 01:
He wanted to know because it's

[00:26:43] Speaker 01:
is that's entirely inconsistent with the theory of linear scaling.

[00:26:48] Speaker 01:
The downstream gauge should be higher, but it's consistently lower.

[00:26:54] Speaker 01:
He said that early in the morning.

[00:26:57] Speaker 01:
The hydrologist responded at 1245, midday,

[00:27:09] Speaker 01:
We really don't know the reason, but actual field measurement confirmed that it did happen.

[00:27:17] Speaker 01:
Then, a couple of hours later, at 2.49, Mr. Pruitt, who may or may not have seen the hydrologist's response by then, wrote to his boss, reporting to answer this question, does linear scaling apply to the Tippecanoe watershed?

[00:27:37] Speaker 01:
Answer, yes.

[00:27:39] Speaker 01:
using linear scaling over the summers between 2002 and 2013, except 2010, result in no statistical difference between average daily flow.

[00:27:55] Speaker 01:
So he thinks he has confirmed it by statistical analysis of that data.

[00:28:02] Speaker 01:
But later that same day, at 3.55 p.m.,

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He responds to the hydrologist, Don, thank you.

[00:28:12] Speaker 01:
I have to say I was hoping for a different answer.

[00:28:15] Speaker 01:
But I'm sure stranger things have happened.

[00:28:18] Speaker 01:
At least I know I didn't transcribe it.

[00:28:21] Speaker 01:
Oh, well, I'll think about how to deal with this.

[00:28:24] Speaker 01:
The point is, earlier that day, he had already dealt with it.

[00:28:28] Speaker 01:
He had done the statistical calculations omitting the bothersome data.

[00:28:39] Speaker 01:
And he later, some months later said to one of the engineers at Northern Indiana Public Service, I jettisoned the data from 2010.

[00:28:50] Speaker 07:
How many years was that study?

[00:28:52] Speaker 07:
Did that study cover?

[00:28:54] Speaker 01:
The study covered 2002 through 2013.

[00:28:59] Speaker 07:
So 11 years or 12 if you or 10 if you take out the 2010.

[00:29:03] Speaker 01:
That's correct.

[00:29:07] Speaker 07:
It's a pretty long study.

[00:29:09] Speaker 01:
Yes.

[00:29:12] Speaker 01:
And what?

[00:29:13] Speaker 07:
And were they told, weren't they told by, I forget whether it was the, I forget who it was, I told them that there was the people that had collected some of the data that there were problems with the data collection, not with the data itself, but just with the data collection in 2010?

[00:29:29] Speaker 01:
That, that appeared 17 months later, from the time I'm talking about.

[00:29:36] Speaker 07:
Are you accusing them of lying?

[00:29:39] Speaker 01:
Your Honor, I am telling you that that's not the reason they deleted the data.

[00:29:46] Speaker 01:
That's the excuse they offered 17 months later.

[00:29:49] Speaker 01:
True or not, I cannot say, but it is inconsistent.

[00:29:53] Speaker 07:
But they were told by experts that there are problems with that data, with the data collection, sorry, not just the data, not the data per se, but just with the data collection.

[00:30:02] Speaker 01:
They were told that there was no quality control done on those two pages.

[00:30:08] Speaker 01:
and they concluded the data was unreliable.

[00:30:13] Speaker 01:
I want, but here's what they were told by the, that's 226.

[00:30:35] Speaker 01:
Here's what I left out, part of what they were told on October the 14th by the USGS hydrologists that they first contacted.

[00:30:46] Speaker 01:
When the 2010 and 2011 water year records were being worked, this item was a real point of discussion.

[00:30:53] Speaker 01:
This was the first time we had actual field measurements at the two stations showing less water downstream during a relatively low flow period.

[00:31:03] Speaker 01:
And he goes on to outline theories they had, but says, we really don't know, but we do know from actual measurements that it happened.

[00:31:15] Speaker 01:
Now,

[00:31:16] Speaker 01:
I have to think if it was a matter of great consternation and discussion at USGS at the time that it happened, that if somebody thought the gauges were inaccurate, that would have come up.

[00:31:29] Speaker 01:
It didn't come up until four and a half years later.

[00:31:33] Speaker 01:
No, excuse me, not quite that, about two years later.

[00:31:38] Speaker 01:
And it only came up after jettisoning the data was made an issue by the

[00:31:46] Speaker 01:
protesters in this case.

[00:31:49] Speaker 01:
So I will say that we know other things where there are other what appear to be intentional misrepresentations on other things.

[00:32:01] Speaker 01:
And in determining whether this is reason or excuse, I think the court can take those into account.

[00:32:15] Speaker 01:
Excuse me, just a moment.

[00:32:26] Speaker 01:
We argue that linear scaling is a poor predictor of low flow.

[00:32:33] Speaker 01:
And in fact, Dr. Chris, one of the coalition's experts, joint appendix 241, cited

[00:32:43] Speaker 01:
published scientific article peer-reviewed that said just that and was dealing with the Tippecanoe River.

[00:32:52] Speaker 01:
That is later, years later than the two Golster papers that FWS purports to rely on and they never mention it.

[00:33:05] Speaker 01:
It took historical data and determined that at low flow linear scaling is a poor predictor.

[00:33:15] Speaker 01:
FWS, if they had a reason to ignore that, they never offered it, and they had to know about it because it was brought up in this expert opinion that was provided to them.

[00:33:29] Speaker 01:
The Indiana Finance Authority said that linear scaling was biased in favor of overestimating low flows.

[00:33:37] Speaker 01:
the commission staff's hydrologist said, I could go on, but I've got it in bullet points in the brief that I was somehow a little chided about.

[00:33:48] Speaker 01:
But the question is not whether it's a difference of opinion, but it's whether there is a difference between a scientifically supported opinion and a non-scientific opinion.

[00:34:06] Speaker 01:
because what does FWS have on the other side?

[00:34:10] Speaker 01:
There is no published scientific literature that would support the concept that linear scaling can be used to predict low flows.

[00:34:19] Speaker 01:
There is none.

[00:34:20] Speaker 01:
We said that, both of our experts said that, it was argued all along.

[00:34:24] Speaker 01:
Nowhere during the proceedings and nowhere in the briefing in this case did fish and wildlife ever respond to that.

[00:34:37] Speaker 01:
They did bring up some emails that they never put in the Federal Energy Regulatory Commission record and never discussed during the proceedings below about a phone call, phone conversation between Professor Golster on whom they purport to rely.

[00:35:02] Speaker 01:
and the principal author of the linear scaling calculations.

[00:35:13] Speaker 01:
We pointed out evidence discovered later that brings into question whether or not Dr. Golster would have said such a thing, as is reported in that email, because he said something completely different

[00:35:32] Speaker 01:
later but be that as it may they didn't they had two papers that did not deal with low flow one of them dealt with mean annual flows one of them dealt with mean flows and flood flows neither of them dealt with low flows and yet having been told by USGS having been told by everybody except reportedly Dr. Golster that it didn't apply to low flows

[00:36:01] Speaker 01:
They accepted it, I think, because they wanted to hear.

[00:36:04] Speaker 01:
They did not say, well, Dr. Golster, if it does apply to low flows, can you give us the citations to where you or someone else has published a paper demonstrating that?

[00:36:16] Speaker 01:
Apparently, they didn't ask the question.

[00:36:18] Speaker 09:
Yes.

[00:36:19] Speaker 09:
Let me ask you a question.

[00:36:21] Speaker 09:
And I'm not suggesting it was your client's burden.

[00:36:25] Speaker 09:
But in the two expert

[00:36:31] Speaker 09:
opinions that are in the record both criticize the use of linear scaling.

[00:36:41] Speaker 09:
Do they indicate what would have been the proper way for the agency to have proceeded?

[00:36:49] Speaker 01:
Yes, they do.

[00:36:52] Speaker 09:
And what did they, if you recall, what did they suggest?

[00:36:55] Speaker 01:
They suggested that the best way to mimic the natural flow of the river was to do exactly what the commission's staff alternative said to do, which was maintain the lake levels, stop generation.

[00:37:13] Speaker 09:
And they did that on the basis in part that one, the fish and wildlife didn't have a control

[00:37:23] Speaker 09:
measure, namely, what was happening upstream?

[00:37:27] Speaker 01:
I don't think, well, one of them certainly cited that and said it was very poor science.

[00:37:36] Speaker 01:
It demonstrated their lack of scientific rigor, I believe is what he said, but no, that wasn't really the basis.

[00:37:44] Speaker 01:
It was that they knew from their own studies and from other published literature that

[00:37:51] Speaker 01:
the kinds of flows we're talking about that the Fish and Wildlife Service thought were unusual are common in Midwestern rivers of the same size, dammed or undammed.

[00:38:05] Speaker 01:
And that there wasn't any need to try to estimate something that you could already achieve just by stopping generation and holding the lake levels.

[00:38:21] Speaker 07:
They had a pretty impressive study that simply stopping generation does not make this flow the same as it would be without the dams there.

[00:38:34] Speaker 07:
It's on, as on page 20 of the Fish and Wildlife, it's in many places in the briefing and record, but page 20 of the Fish and Wildlife Service brief, they have a chart there that shows the comparison between how the river would run or the natural flow

[00:38:50] Speaker 07:
if there were no dams at all versus these ones with the dams, even if no electricity is being generated.

[00:38:56] Speaker 07:
So, I mean, you may have a different view, but that was a pretty impressive difference on that chart.

[00:39:06] Speaker 01:
That's correct.

[00:39:07] Speaker 01:
And that is all based upon their flawed linear scaling exercise.

[00:39:12] Speaker 07:
No, this is just for 2012, right?

[00:39:16] Speaker 01:
I'm sorry.

[00:39:16] Speaker 01:
Tell me the page of the brief again, please.

[00:39:19] Speaker 07:
Page 20.

[00:39:20] Speaker 07:
This is Fish and Wild Service, the green brief.

[00:39:40] Speaker 07:
It's just the reality of the dams being there makes a big difference, even if they're not generating electricity.

[00:39:50] Speaker 01:
Well, Your Honor, I do not believe... It says it does not track neither the Norway Gauge, that's the upstream dam, nor the Oakdale Gauge, that's the downstream dam, tracks with the river's natural flow

[00:40:16] Speaker 01:
around red line measured at the Winamac gauge.

[00:40:21] Speaker 01:
The Winamac gauge upstream is the one that they use, they say, to calculate what natural flows are.

[00:40:30] Speaker 01:
Our experts said, and I'll give you an example.

[00:40:34] Speaker 07:
Look, I'm just responding to your point that they had sort of, they couldn't do linear scaling, they were just supposed to

[00:40:44] Speaker 07:
is given that turning off the power generation equals natural flow.

[00:40:49] Speaker 07:
And they've got strong evidence for putting that with this chart.

[00:40:55] Speaker 07:
And maybe you got an expert that says, you know, one of our experts, he said, she said.

[00:41:00] Speaker 01:
I am not asking you to decide who is right on that.

[00:41:04] Speaker 01:
But I am suggesting that they are saying

[00:41:09] Speaker 01:
That everything should be a smooth line when in fact that's not the way it works.

[00:41:15] Speaker 01:
And an example.

[00:41:16] Speaker 07:
I know you said no linear scaling.

[00:41:17] Speaker 07:
That's what you oppose.

[00:41:18] Speaker 07:
But when Judge Rogers said what is the method for measuring the river.

[00:41:22] Speaker 07:
You said, well, the services proposal to not lower the lake.

[00:41:28] Speaker 07:
That's, that's a result.

[00:41:30] Speaker 07:
That's not a way of measuring.

[00:41:32] Speaker 07:
If not linear scaling, then what is the best way for measuring whether or not, how to maintain natural flow?

[00:41:40] Speaker 07:
What is the alternative way of doing that measurement?

[00:41:42] Speaker 07:
Not the end result, but the measurement.

[00:41:45] Speaker 01:
Well, the best I can answer to that, Your Honor, and probably may not be sufficient, is that it's not linear scaling.

[00:41:57] Speaker 01:
and so the experts didn't identify how they should do it they just said don't don't bother testing at all just keep just do what the commission wants you to do no there's a false assumption in this chart that because it's uneven and it does one upstream doesn't line up net completely with one downstream not completely they're way off let's be clear understand and uh quite frankly i

[00:42:27] Speaker 01:
I don't.

[00:42:32] Speaker 01:
All right.

[00:42:32] Speaker 01:
One can see dramatic contrast between the river's smooth natural flow and the sharp fluctuations in flow from the dams that service made from data from summer of 2012.

[00:42:42] Speaker 01:
I have not read that and without going back to the original document would believe that that is not with generation stopped.

[00:42:55] Speaker 07:
Oh, that's my understanding is that it was.

[00:42:58] Speaker 07:
Well, I can be wrong, but that was my understanding.

[00:43:01] Speaker 07:
I read somewhere that was with generation stopped.

[00:43:04] Speaker 01:
One of us is mistaken and I don't know who it is.

[00:43:07] Speaker 07:
Okay, well, it could be me.

[00:43:10] Speaker 01:
But let me know.

[00:43:19] Speaker 07:
Maybe the Fish and Wildlife Service can tell us if I've got it if I've got it wrong here.

[00:43:39] Speaker 07:
I don't want to from the from the main point which is the experts didn't propose an alternative way of measuring the river.

[00:43:49] Speaker 01:
Well every expert except Fish and Wildlife Service that being the one retained by Indiana Finance Commission the one returned but retained by the commission the two that

[00:44:03] Speaker 01:
And the two that we retained all said that the most natural flow regime is run-of-river, which means maintaining the lake at a certain level.

[00:44:15] Speaker 07:
And let me, there's- Just for your information on JA 1170, where that chart appears, it says generation was not occurring at this time.

[00:44:25] Speaker 07:
Well- Right in the paragraph, right under the graph.

[00:44:27] Speaker 01:
Then I apologize to the court, I was mistaken.

[00:44:31] Speaker 07:
Well, there's a lot of stuff to sort through here, so that's easy to happen.

[00:44:35] Speaker 01:
But I can explain to you why those lines would not match up that has nothing to do with unnatural flow.

[00:44:47] Speaker 01:
And that is, I would refer you to Joint Appendix 954 through 957.

[00:44:57] Speaker 01:
data that which lays out data that Fish and Wildlife Service had but ignored.

[00:45:07] Speaker 01:
Now they are trying to take flow above both dams and use it to predict what the natural flow would be at the downstream dam.

[00:45:19] Speaker 01:
and they think it's perfect linear scaling.

[00:45:23] Speaker 01:
Well, let's go below the dam and see if perfect linear scaling holds true.

[00:45:30] Speaker 01:
On 954,

[00:45:34] Speaker 01:
There is the explanation that the behavior between the Oakdale and Delphi gauges, Oakdale is just barely downstream from the dam release, and Delphi is right in the middle of that stretch where the mussels are.

[00:45:55] Speaker 01:
of the 21 days or July 2012, the flow at Delphi is less than the flow at Oakdale.

[00:46:03] Speaker 01:
That violates linear scaling.

[00:46:06] Speaker 01:
And look, that's not being influenced by anything except you let this much water out of the dam and not that much gets downstream.

[00:46:17] Speaker 01:
And there are graphs showing

[00:46:22] Speaker 01:
this data at the pages that I've referred you to.

[00:46:26] Speaker 01:
The river from which the expert concludes, the river segment between Oakdale and Delphi is a losing river during this period.

[00:46:37] Speaker 01:
Since the Oakdale Gauge became operational on 12, 13, 2008, more than 33% of the time, the flow at Oakdale is greater than the flow at Delphi.

[00:46:49] Speaker 01:
on nearly 60% of days in this period for which flows at Oakdale are less than or equal to 600 CFS, the flow at Delphi is less than at Oakdale, i.e.

[00:47:04] Speaker 01:
the stream is losing flow in this reach.

[00:47:09] Speaker 01:
So, the assumptions that they made upstream are proven false.

[00:47:17] Speaker 01:
by the data that they had in 2012 from downstream.

[00:47:23] Speaker 01:
And it's just like the first USGS geologist said, complications of geology come into play when you try to use linear scaling to project low flows.

[00:47:38] Speaker 01:
And note the trend.

[00:47:40] Speaker 01:
that's overall 33% of the time, but when you get below 600 equal to or below 600 CFS at Oakdale Dam, it's 60% of the time that the downstream flow is lower.

[00:47:56] Speaker 01:
What's argued here is the same thing happens in the stretch between Winamac Gauge and Oakdale.

[00:48:05] Speaker 01:
Some places are gaining, some are losing.

[00:48:08] Speaker 01:
You cannot say

[00:48:10] Speaker 01:
that the dam is influencing the flow just because of a figure like the one on page 20 of their brief.

[00:48:19] Speaker 01:
That's what this whole discussion is about.

[00:48:20] Speaker 01:
Now, they could have looked at that data that he just pointed out about a losing stretch downstream and said, well, here's why we think that doesn't apply.

[00:48:34] Speaker 01:
And they might've had a good reason.

[00:48:36] Speaker 01:
Instead, they ignored it.

[00:48:38] Speaker 01:
just like they tended to ignore most anything that didn't fit their theory, just like they jettison the data from 2010 that was contrary to linear scaling.

[00:48:53] Speaker 01:
You know, best science has to mean something.

[00:49:02] Speaker 01:
And I would,

[00:49:05] Speaker 01:
like to say what Dr. Chris, one of our experts, said about excluding data.

[00:49:15] Speaker 01:
This is Joint Appendix 243.

[00:49:19] Speaker 01:
FWS arbitrarily excluded more than 10% of the available data pairs, specifically 74 points from 2010 when flow at Winimac

[00:49:29] Speaker 01:
was less than at upstream aura and therefore did not support FWS hypothesis about linear scaling.

[00:49:38] Speaker 01:
Such arbitrary conclusions is word not mine, particularly when representing such a large fraction of the available data that is directly contrary to the claim result is not permitted in statistical analysis and violates the most basic underpinnings of the scientific method.

[00:49:58] Speaker 01:
These defects in the data selected by FWS fatally undermine the validity of any conclusions that can be drawn from them.

[00:50:09] Speaker 01:
The whole case we're preventing could be summed up by saying FWS in their mission and their zeal did a study that determined what flow they needed at Delphi gauge down the stream from Oakdale Dam to

[00:50:28] Speaker 01:
that would be minimally protective of mussels, that's their words.

[00:50:34] Speaker 01:
They did that without consideration of whether flows lower than that happen naturally.

[00:50:39] Speaker 01:
Then they worked backwards from there to try to show that flows out of Oakdale that would maintain those minimums downstream of Oakdale were natural and in so doing,

[00:50:59] Speaker 01:
They chose a formula for which they have zero scientific support.

[00:51:05] Speaker 01:
They misapplied it.

[00:51:06] Speaker 01:
They jettisoned relevant data.

[00:51:12] Speaker 01:
And all I can say, if that is not an arbitrary and capricious way to go about things, I don't think such thing exists.

[00:51:23] Speaker 09:
All right, Council, why don't we hear from Council

[00:51:27] Speaker 09:
for FERC and then the Fish and Wildlife Service, and we'll give you some time on rebuttal.

[00:51:33] Speaker 01:
Thank you.

[00:51:35] Speaker 09:
All right, council for FERC.

[00:51:38] Speaker 08:
May it please the court, Elizabeth Rylander for the commission.

[00:51:42] Speaker 08:
I'd like to return to the discussion of perspective where we started some time ago now.

[00:51:50] Speaker 08:
Schaeffer and Freeman points out at pages 25 and 26 of their brief that their focus here is on the drawdowns of Lake Freeman.

[00:51:58] Speaker 08:
And it's very important to note the FERC staff initially agreed with Schaeffer and Freeman that the drawdowns weren't needed and that maintaining run of river as FERC defines it would be sufficient to both protect the economic activity at the lake and the endangered mussels downstream.

[00:52:19] Speaker 08:
But what's even more important is that the service didn't agree with FERC.

[00:52:24] Speaker 08:
And the service found that a different

[00:52:29] Speaker 08:
a different river flow is necessary to protect the endangered mussels.

[00:52:33] Speaker 08:
And under the statute, under the Endangered Species Act, the services view is what governs here.

[00:52:40] Speaker 08:
There are only very narrow circumstances under which FERC does not defer to the services opinion, and those circumstances aren't presented here.

[00:52:48] Speaker 04:
The FWS opinion before us is the same kind of review as the rest of the FERC opinion.

[00:52:56] Speaker 08:
I'm sorry, Judge Santel, could you repeat that, please?

[00:52:59] Speaker 04:
I guess I maybe didn't make it clear.

[00:53:04] Speaker 04:
We review FERC under the usual APA.

[00:53:06] Speaker 04:
Now, this includes a decision made by FWS and deferred to by FERC.

[00:53:13] Speaker 05:
Yes, Your Honor.

[00:53:14] Speaker 04:
Is the services opinion before us for the same sort of review as the rest of the FERC opinion?

[00:53:23] Speaker 08:
Yes, Your Honor, I would say that it is.

[00:53:26] Speaker 08:
as discussed in the City of Tacoma case.

[00:53:30] Speaker 08:
The presentation is different than it is with regard to biological opinions that are given to some other agencies, but yes, it's on review.

[00:53:43] Speaker ?:
Okay, Trudy, go ahead.

[00:53:43] Speaker 08:
Okay.

[00:53:44] Speaker 09:
The commission, the commission is... Just to spell it out a little, we're trying to determine whether or not FERC and or the Fish and Wildlife Service

[00:53:57] Speaker 09:
were arbitrary and capricious in concluding that a particular drawdown of Lake Freeman was necessary to prevent incidental take because whether or not FERC had any

[00:54:26] Speaker 09:
responsibility for examining the fish and wildlife reasons for its conclusion.

[00:54:38] Speaker 09:
The question is whether the Fish and Wildlife Service considered what was before it and gave an adequate explanation of what it was due under State Farm.

[00:54:57] Speaker 09:
Is that your understanding?

[00:54:59] Speaker 08:
Yes, it is, your honor.

[00:55:03] Speaker 08:
And as the commission found here, the two agencies have a difference of opinion in light of their different statutory obligations.

[00:55:11] Speaker 08:
And that difference of opinion is not a particular surprise.

[00:55:14] Speaker 08:
That's initial order of paragraph.

[00:55:16] Speaker 09:
Kirk learned that the opinion rendered by, let's see, it's the consulting agency.

[00:55:26] Speaker 09:
was fine for tracking polar bear climes and had nothing to do with river flow, would it still be bound to accept the fish and wildlife position?

[00:55:49] Speaker 09:
As I read the Supreme Court opinion, there's language in there.

[00:55:54] Speaker 09:
the FERC rejects the Fish and Wildlife Services, positioned under the Endangered Species Act, at its risk.

[00:56:05] Speaker 09:
But that case wasn't really dealing with what I pose in this hypothetical.

[00:56:12] Speaker 08:
As I understand, Your Honor, you're referring to a biological opinion submitted to FERC on completely different subject matter outside FERC's jurisdiction and not dealing with the project in question.

[00:56:23] Speaker 09:
So even if anyone would say polar bear tracking has absolutely nothing to do with river flow, and to the extent the other agency is relying on polar bear tracking to come up with its proposal, FERC would nevertheless be legally obligated to accept that other position.

[00:56:50] Speaker 09:
I'm pressing you because I didn't see the Supreme Court quite to say that.

[00:56:54] Speaker 09:
It does so at its risk, but I'm trying to give you a hypothetical of an extreme situation.

[00:57:03] Speaker 08:
Yes, Your Honor.

[00:57:05] Speaker 08:
City of Tacoma says that blindly adopting the consultant agency's findings isn't acceptable.

[00:57:11] Speaker 08:
The commission does have to at least confirm that the findings have some grounding.

[00:57:20] Speaker 08:
I would say that if the commission were to have received a biological opinion in this case, where the issue is endangered mussels and the biological opinion spoke of polar bears, the commission would reasonably have some questions for the service and indeed might not defer.

[00:57:34] Speaker 08:
That is of course not what happened here.

[00:57:37] Speaker 09:
Is that fish and wildlife was relying on a model based for overflows

[00:57:48] Speaker 09:
that it was alerted to had nothing to do with low flows.

[00:57:53] Speaker 09:
And it was problematic.

[00:58:01] Speaker 08:
Yes, Your Honor.

[00:58:02] Speaker 08:
The Commission does not examine

[00:58:05] Speaker 08:
the service's substantive findings unless there is, unless it appears that there is evidence the service did not take into consideration.

[00:58:14] Speaker 04:
In this case- No, we have to, but no, we have to.

[00:58:16] Speaker 04:
If your answer to my first question is correct, then we as a court do have to examine whether there's been an arbitrary or a prescient decision made, whether there's been a failure to deal with the major questions raised

[00:58:29] Speaker 04:
and come in and the usual things we do in an APA review.

[00:58:34] Speaker 04:
Maybe Fert doesn't, since you don't, isn't it incumbent upon us to do so?

[00:58:40] Speaker 08:
Yes, your honor.

[00:58:41] Speaker 08:
It is for the court and not the commission to pass judgment on the on the adequacy of the biological opinion.

[00:58:48] Speaker 04:
The commission is taking no position as to the adequacy of that FDBS report.

[00:58:54] Speaker 04:
You're just saying Fert was justified in

[00:58:58] Speaker 04:
putting aside its own decision and deferring the differing decision of the service?

[00:59:08] Speaker 08:
Yes, your honor.

[00:59:09] Speaker 04:
Putting aside FERC's own- And you still would have to review this to whether the service's decision itself survives APA review, right?

[00:59:16] Speaker 08:
Yes, your honor.

[00:59:17] Speaker 04:
Okay, thank you.

[00:59:18] Speaker 09:
So when you answered that FERC has an obligation not to blindly accept

[00:59:27] Speaker 09:
what the Fish and Wildlife Service has proposed, what is the substance of that obligation?

[00:59:37] Speaker 08:
As FERC interpreted that here, FERC examined the biological opinion and found in its orders that the biological opinion was thorough and well-reasoned and that

[00:59:52] Speaker 08:
Schaeffer and Freeman had not presented the commission with any reason to question or to deviate from what the biological opinion said.

[01:00:02] Speaker 08:
We have no reason not to defer.

[01:00:05] Speaker 08:
And again, all of the evidence that Schaeffer and Freeman presented to us, it also presented to the Fish and Wildlife Service, and the service was able to consider it all, which gave the commission no basis to do anything other than defer.

[01:00:21] Speaker 09:
Let me ask you whether you know, as a practical matter, when these agencies are dealing with each other and the Indiana Public Service Commission was involved, I mean, FERC could pick up the telephone or send an email asking some questions of the Fish and Wildlife Service, because it had before it the same record, essentially, that the court now has, including these other two points of view.

[01:00:51] Speaker 09:
My hypothetical, you'd send an email saying, you know, there are two experts here, and they're experts in the area that's an issue here, and they totally attack your model.

[01:01:09] Speaker 09:
What's your response?

[01:01:10] Speaker 09:
I mean, FERC could do that, right?

[01:01:14] Speaker 08:
Yes, Your Honor, I think FERC could do that.

[01:01:16] Speaker 08:
I think it might do it in writing as opposed to picking up the phone and writing it on the record.

[01:01:21] Speaker 08:
Yeah.

[01:01:23] Speaker 08:
But yes, I do think there is room here for interplay between the agencies.

[01:01:28] Speaker 08:
And certainly, there's a lot of written communication back and forth, like following the commission's initial environmental assessment, the service requested more information, the commission provided it.

[01:01:38] Speaker 09:
Precisely.

[01:01:40] Speaker 08:
Yes.

[01:01:41] Speaker 09:
All the emails in this case.

[01:01:42] Speaker 09:
I didn't see FERC raise any questions.

[01:01:47] Speaker 09:
It got the view and just accepted it.

[01:01:52] Speaker 08:
Yes, Your Honor.

[01:01:53] Speaker 08:
Certainly FERC presented its own views twice, and the service responded on both occasions that the service didn't agree.

[01:02:03] Speaker 08:
But again, in light of the two agencies' statutory obligations, which are somewhat different, that's not necessarily a surprise.

[01:02:10] Speaker 09:
Well, FERC asked for a consultation, all right?

[01:02:13] Speaker 09:
So that was an opportunity to explore these questions, correct?

[01:02:17] Speaker 08:
Yes, Your Honor.

[01:02:20] Speaker 07:
Can I ask you?

[01:02:22] Speaker 07:
When at the rehearing stage FERC receives from petitioners objections to its decision including some objections to the underlying Fish and Wildlife Service methodologies and acting on that rehearing petition does FERC consult with the Fish and Wildlife Service on the challenges that were the underlying challenges that were made in that rehearing petition to the biological opinion before acting or does it ignore

[01:02:54] Speaker 07:
those objections?

[01:02:55] Speaker 08:
No, I believe FERC is acting just on its own record at that point.

[01:02:59] Speaker 08:
I don't believe there's any mechanism at that stage for the commission to interact with the Fish and Wildlife Service.

[01:03:07] Speaker 07:
Well, the commission still has the duty to make sure it's behaving reasonably and relying on that biological opinion.

[01:03:13] Speaker 07:
And so your position is that they don't at that point.

[01:03:18] Speaker 07:
At that point, once problems are raised at the rehearing stage, they can just

[01:03:23] Speaker 07:
ignore them and continue to rely on the biological opinion?

[01:03:26] Speaker 08:
Rehearing alleges errors in the commission's initial order.

[01:03:31] Speaker 08:
And at that point, I believe the record is what it is.

[01:03:35] Speaker 07:
The commission has some authority to... But the biological opinion is part of that record, correct?

[01:03:40] Speaker 07:
Yes, Your Honor.

[01:03:41] Speaker 07:
Okay.

[01:03:41] Speaker 07:
And so if someone were to say, to bar Judge Rogers' hypothetical, on rehearing, Ferck, you cannot reasonably rely on this biological opinion because it was predicated on

[01:03:53] Speaker 07:
polar bear tracking and not water flow.

[01:03:58] Speaker 07:
And your position is that FERC would go, nothing we can do about it.

[01:04:02] Speaker 07:
You had noticed that the first time around, now someone's flagged it for you.

[01:04:05] Speaker 07:
And FERC would go, nothing we can do about that.

[01:04:08] Speaker 07:
It's still reasonable for us to rely on this biological opinion.

[01:04:12] Speaker 08:
Oh, no, your honor.

[01:04:13] Speaker 08:
I think at that point, if the commission had somehow not noticed in its first order that the biological opinion concerned polar bears,

[01:04:20] Speaker 08:
then the prudent thing to do would be to grant rehearing and perhaps establish some further agency process.

[01:04:26] Speaker 07:
OK, and what if instead the rehearer petition said, you've used the wrong water methodology.

[01:04:33] Speaker 07:
Here are six experts.

[01:04:34] Speaker 07:
We showed you six experts.

[01:04:36] Speaker 07:
Let me remind you to say that methodology is wrong.

[01:04:39] Speaker 07:
And FERC says, I hadn't noticed that before.

[01:04:46] Speaker 07:
call for rehearing, or would it consult the Fish and Wildlife Service and say, did you have a response to this?

[01:04:51] Speaker 07:
Or would it look through the biological opinion and see if it addressed it?

[01:04:55] Speaker 07:
How does FERC respond to substantive challenges to the Fish and Wildlife Service that aren't as easy as Judge Rogers' hypothetical?

[01:05:04] Speaker 07:
But that would nonetheless perhaps make it unreasonable for FERC to rely without further inquiry.

[01:05:11] Speaker 08:
At the rehearing stage, Your Honor, FERC is acting under the Federal Power Act, Federal Power Act Section 313.

[01:05:18] Speaker 08:
And it does consider the issues that are raised to it on rehearing, but it does not in the course of considering what to do with a rehearing request.

[01:05:30] Speaker 08:
Sue Esponte

[01:05:32] Speaker 08:
begin further proceedings, as in further consultation with the service, that sort of thing.

[01:05:39] Speaker 07:
Does it go look at the biological opinion record to resolve this, to satisfy itself that the Fish and Wildlife Service didn't go astray?

[01:05:47] Speaker 08:
You mean the Commission's own record, Your Honor?

[01:05:52] Speaker 07:
Well, that includes the biological opinion, yes.

[01:05:55] Speaker 07:
On these types of issues, that's the only place you're going to find this is in the biological opinion.

[01:06:00] Speaker 08:
Yes, Your Honor, the Commission

[01:06:01] Speaker 08:
would re-examine the record developed before it, including the biological opinion.

[01:06:06] Speaker 08:
And if the commission had made errors in its reliance, it could correct them on re-hearing.

[01:06:20] Speaker 08:
I would further add, in response to the opening argument, there is no rule delineating minor and major changes.

[01:06:29] Speaker 08:
The commission did address in, uh, in both of its orders, the fact that, um, it considered the change in, uh, it considered the operational change here to be a minor one.

[01:06:41] Speaker 09:
That what was considering was the purpose.

[01:06:45] Speaker 09:
The general purpose.

[01:06:49] Speaker 09:
That was the basis on which.

[01:06:52] Speaker 09:
For made its conclusion that this was minor.

[01:06:56] Speaker 08:
The Commission did speak of general purpose, and it also cited the Westlands case from the Ninth Circuit, and Westlands, which did concern major change, required new additional actions beyond what was contemplated, beyond what had been previously contemplated.

[01:07:18] Speaker 04:
It's been described as a design change by a petitioner.

[01:07:23] Speaker 04:
What do you say to that proposition when the change in the basic design of this program, does this constitute something more than minor?

[01:07:34] Speaker 08:
Your honor, I'm sorry, I was not able to hear all of your question.

[01:07:37] Speaker 04:
I'm going to have to change to a different mic the next time we have court.

[01:07:41] Speaker 04:
Everybody's having trouble.

[01:07:42] Speaker 04:
I apologize.

[01:07:47] Speaker 04:
The proposition advanced by the petitioner is that this cannot be dismissed as a minor change or changes the fundamental design of the program.

[01:08:00] Speaker 04:
What do you say to that?

[01:08:02] Speaker 08:
Yes, Your Honor.

[01:08:06] Speaker 08:
Both agencies, in addition to sharing the goals of protecting the muscles,

[01:08:12] Speaker 08:
we're contemplating the best way to obtain run-of-river or natural river flow.

[01:08:18] Speaker 04:
It's not design.

[01:08:20] Speaker 04:
The design advanced by first involved run-of-river, which is a traditional form of art as to what was going on there, the run-of-river.

[01:08:30] Speaker 04:
Yes, your honor.

[01:08:32] Speaker 04:
The program advanced by the service was,

[01:08:38] Speaker 04:
not to go with the usual run of river, but there would be actual variation in the lake level, pretty significant, 12 feet on a wide shallow lake.

[01:08:53] Speaker 04:
That's a heck of a lot of water.

[01:08:57] Speaker 04:
Why isn't that a design change that has to be something more than minor?

[01:09:04] Speaker 08:
Again, Your Honor, we're talking about managing river flow by operating a FERC licensed project.

[01:09:15] Speaker 08:
In Westlands, there were what was considered more than a minor change to the design of the project involved

[01:09:25] Speaker 08:
potentially devouring water for more than one source and systemic effects in many places.

[01:09:29] Speaker 04:
That will tell us that what was done in the Westlands constitutes an amazing change.

[01:09:33] Speaker 04:
That does not speak to whether or not this one is an amazing change.

[01:09:37] Speaker 08:
I understand, Your Honor.

[01:09:38] Speaker 08:
Again, there are very few guideposts in case law.

[01:09:41] Speaker 08:
But all that is contemplated here is that the licensee would continue to operate the dam and to operate the dam in order to maintain natural run of river flow.

[01:09:53] Speaker 08:
That's essentially the same design and the difference is just in the details.

[01:09:58] Speaker 04:
Ah, the devil is in the details.

[01:10:00] Speaker 04:
It's pretty big detail to make a 12 foot in the lake level of a wide shallow lake.

[01:10:06] Speaker 04:
And that brings us back- Many, many acres, just many, many acres of character for usable lake water that are going down to marshland along the sides instead.

[01:10:18] Speaker 04:
Does that not sound something more than minor?

[01:10:22] Speaker 08:
Again, Your Honor, I think that that brings us back to the discussion of perspective where we started, certainly from Schaeffer and Freeman's perspective, that is more than minor.

[01:10:31] Speaker 08:
And initially, the commission thought it was possible to have everything it wants.

[01:10:37] Speaker 08:
But the commission found and held and found again on rehearing that it is a minor change to what was initially proposed.

[01:10:47] Speaker 04:
Did the commission offer any sort of definition as to what minor mean in that context?

[01:10:54] Speaker 04:
Something we can defer to you on your server on?

[01:10:58] Speaker 08:
The commission in its rehearing order, paragraph 35 and footnote 49, did speak of achieving the same purpose as the commission staff alternative to approximate run of river flow and protect downstream mussel populations.

[01:11:16] Speaker 08:
and cited Westlands.

[01:11:18] Speaker 08:
So that's not a lot, your honor, but that is what the commission had to say.

[01:11:24] Speaker 04:
Is there a reasonable definition of the term minor to say that anything that was stated to achieve the same result is not minor?

[01:11:34] Speaker 04:
Is that a reasonable definition?

[01:11:37] Speaker 08:
I would not want to make representations beyond this case, but in this context, yes, your honor, it is.

[01:11:48] Speaker 07:
Because if you can't, is your rule just if it advances the same purpose?

[01:11:55] Speaker 07:
Because that requires us to think about hypotheticals beyond this case.

[01:11:59] Speaker 08:
It advances the same purpose by the same means, which is ensuring natural run of river flow.

[01:12:08] Speaker 07:
But it's not the same means if you're drawing down a lake more than you were allowing it to be drawn down significantly more than you were allowing it to be drawn down before.

[01:12:17] Speaker 08:
Again, Your Honor, that reflects the difference of opinion between the two agencies.

[01:12:23] Speaker 08:
And from the perspective of the Fish and Wildlife Service, I think perhaps that's not a major change.

[01:12:28] Speaker 08:
What about from FERC's perspective?

[01:12:35] Speaker 08:
And again, FERC was looking at the means and at the end.

[01:12:41] Speaker 08:
it is not a major change because we're, because all what we're doing is directing the river toward protecting.

[01:12:48] Speaker 04:
If you're deciding whether something's minor or major, can you just look at the beginning and the end and not look at what's happening in the middle and determining what the change itself is, what has to be minor to be within these terms.

[01:13:05] Speaker 04:
And I don't see that as a way of defining whether a change is major or minor, just to say, well, we're all trying to go the same way.

[01:13:12] Speaker 04:
We don't write just for a case, we write for precedent as well and having a definition of minor might be very helpful in getting there, but I don't think there's one in the documentation we're reviewing.

[01:13:33] Speaker 09:
Council, do you know of any other situation where FERC has had to draw the distinction between major and minor?

[01:13:43] Speaker 08:
I do not, Your Honor.

[01:13:51] Speaker 08:
I would, however, note that if the question has to do with allowing additional water flow, the commission has done that and the court has approved it in the Alabama power case cited in our brief where the species in question was an endangered snail.

[01:14:16] Speaker 04:
I remember in Alabama, the company was on the side of the snail.

[01:14:29] Speaker 07:
I just have a remedy question.

[01:14:32] Speaker 07:
Yes, your honor.

[01:14:32] Speaker 07:
And that is, if, this hypothetical, obviously, but if the court were to define that FERC was reasonable in deferring to the Fish and Wildlife Service's biological opinion,

[01:14:48] Speaker 07:
So you're following it was reasonable.

[01:14:51] Speaker 07:
The biological opinion itself is actually flawed.

[01:14:56] Speaker 07:
What kind of remedy could be imposed since the only petition for review here is from FERC's licensing decision, which we will have just said FERC acted reasonably in issuing a license in reliance on the Fish and Wildlife Service.

[01:15:11] Speaker 07:
I know they object to the biological opinion, but they didn't do a separate petition for review or name.

[01:15:16] Speaker 07:
They're not here as a respondent before us.

[01:15:19] Speaker 07:
I mean, they intervened.

[01:15:20] Speaker 07:
But what kind of remedy would happen in a case like this?

[01:15:23] Speaker 07:
We thought FERC got it right in issuing the license, but given it's the deference that's expected to, not blind deference, but deference that's expected to fish in wildlife service.

[01:15:34] Speaker 07:
How does this work?

[01:15:36] Speaker 08:
I don't know, Your Honor.

[01:15:39] Speaker 08:
there would have to be some further agency proceeding.

[01:15:45] Speaker 08:
If FERC was reasonable in deference.

[01:15:48] Speaker 07:
And in issuing the license otherwise.

[01:15:50] Speaker 08:
And in issuing the license, I would think that the remedy would have to be remand for further proceedings between FERC and the service.

[01:16:02] Speaker 08:
I'm not sure what that would look like.

[01:16:05] Speaker 07:
It seems odd not to grant a petition, even though we've found that the agency action, the object of that petition was properly taken and lawfully taken.

[01:16:15] Speaker 08:
It does, Your Honor.

[01:16:17] Speaker 08:
It does.

[01:16:20] Speaker 09:
What happened in your view?

[01:16:24] Speaker 07:
Sorry, I didn't hear.

[01:16:25] Speaker 07:
Neither did I. I didn't hear your question, Judge Rogers.

[01:16:31] Speaker 09:
What would happen in your view on remand?

[01:16:36] Speaker 08:
I would think that FERC and the service would have to revisit their consultation.

[01:16:43] Speaker 08:
I'm not aware of instances in which that has happened previously, so I don't want to speculate as to exactly how that would look.

[01:16:52] Speaker 04:
And if we vacate, or even if we remand for further proceedings, wouldn't there have to be

[01:16:59] Speaker 04:
a new hearing, essentially.

[01:17:03] Speaker 08:
There would have to be some further.

[01:17:05] Speaker 04:
An inter-agency meeting between FERC and the service, but an open proceeding for the party, other parties could be heard again.

[01:17:18] Speaker 08:
Yes, if the biological opinion were invalid, I think then we would have to return to the point where FERC requested consultation on the staff alternative.

[01:17:28] Speaker 08:
redo the proceeding from there.

[01:17:30] Speaker 04:
Going back to the question that Judge Rogers was pursuing, there was not any way, or one of my colleagues was pursuing, there was not any way for the petition to be taken directly from the FWS to the court.

[01:17:47] Speaker 04:
No, Your Honor.

[01:17:48] Speaker 04:
They filed theirs with FERC and there's no way that the, at that point that a petitioner can arise

[01:17:56] Speaker 04:
Schaeffer can arise to bring it to us.

[01:17:59] Speaker 04:
It has to go through FERC, right?

[01:18:01] Speaker 08:
Correct, Your Honor.

[01:18:04] Speaker 09:
Right.

[01:18:04] Speaker 09:
And let me be clear.

[01:18:06] Speaker 09:
At the point of rehearing, FERC did not have petitioners' arguments about linear scaling.

[01:18:23] Speaker 04:
They did have.

[01:18:25] Speaker 08:
FERC did have the arguments about linear scaling.

[01:18:28] Speaker 08:
It did not have the arguments concerning upstream muscles, and it did not have some of the very specific arguments concerning who knew what at what time.

[01:18:36] Speaker 09:
But it did have, well, it did have the expert's, petitioner's expert's views

[01:18:51] Speaker 08:
Yes, Your Honor, FERC had those views and FERC had the services opinions on those views.

[01:18:56] Speaker 07:
Didn't have the argument about jettisoning the 2010 data.

[01:19:04] Speaker 08:
I do not believe it was raised on rehearing.

[01:19:06] Speaker 08:
I know I addressed it in my brief.

[01:19:08] Speaker 08:
I don't have the correct page.

[01:19:10] Speaker 07:
Or the challenge to the exponent.

[01:19:12] Speaker 08:
Correct.

[01:19:15] Speaker 07:
So official wildlife service intervened here.

[01:19:17] Speaker 07:
And what if they had intervened, had not intervened?

[01:19:21] Speaker 08:
then the only question properly before the court would be of reliance.

[01:19:26] Speaker 07:
So by their intervention, they imperil their biological opinion.

[01:19:30] Speaker 07:
But if they stay out, they don't have a lesson to them to stay out.

[01:19:37] Speaker 08:
Yes, Your Honor.

[01:19:38] Speaker 08:
I think, I mean, the alternative would be that FERC would attempt to defend a technical document that it didn't develop.

[01:19:45] Speaker 07:
There are procedures for challenging biological opinions, correct?

[01:19:49] Speaker 07:
Is that normally in district court?

[01:19:53] Speaker 08:
I believe with regard to, and I think the services council is probably better equipped to answer this question than I am, but I believe under many, in many other circumstances, the biological opinion can be challenged in district court.

[01:20:09] Speaker 04:
But when you're dealing with a federal license it cannot.

[01:20:17] Speaker 04:
for a petition to take that directly to court, any court, or does it all have to go through first?

[01:20:26] Speaker 08:
Judge Santel, you're referring to- And it's not a final decision.

[01:20:29] Speaker 04:
Ordinarily, the APA, the attorney under the APA, jurisdiction under the APA, ordinarily, there has to be a final decision which we would be reviewing.

[01:20:39] Speaker 08:
Oh, so the biological opinion.

[01:20:41] Speaker 04:
The biological opinion being furnished to

[01:20:44] Speaker 04:
another agency, has the service entered a final decision that is reviewable under the APA?

[01:20:52] Speaker 08:
I would say no, Your Honor, because unless the substance, the biological opinion, and the reasonable and prudent measures are incorporated into the FERC license, I don't believe that they would bind the licensee.

[01:21:04] Speaker 04:
Nobody has a standing or has a jurisdiction under the APA for us to review the services opinions at that point.

[01:21:15] Speaker 09:
Thank you.

[01:21:27] Speaker 09:
Our interviewee here, Department of Interior, Fish and Wildlife Service.

[01:21:33] Speaker 03:
So I'll start by wishing the court good afternoon.

[01:21:36] Speaker 03:
Good afternoon, Your Honor.

[01:21:39] Speaker 03:
Justin Heminger at the Justice Department on behalf of the Fish and Wildlife Service.

[01:21:45] Speaker 03:
The services biological opinion here for for federally protected muscle species does reflect solids evidentiary support and also sound science and the petitioners arguments based on the record are not supported and contradict this court's case law.

[01:22:06] Speaker 03:
I did want to cover two basic points today in response to the petitioner's arguments.

[01:22:11] Speaker 03:
And then I also heard a lot of questions from the court about several other things that I'd also like to address.

[01:22:18] Speaker 03:
The basic points that I would like to make today are first, that the service reasonably included that the operation of the dams under the current license, the 2007 license, would result in harm or death to muscles downstream.

[01:22:35] Speaker 03:
And that's what the Endangered Species Act refers to as TAKE.

[01:22:39] Speaker 03:
And then the second basic point that I wanted to make today is that the service rationally chose the linear scaling model to model the Tippecanoe's natural flow.

[01:22:49] Speaker 03:
I also heard questions from the court about the reasonable and prudent measure and whether that is a major or minor change.

[01:22:57] Speaker 03:
And then I also heard Judge Millett referencing the petitioner's failure to identify the services order

[01:23:04] Speaker 03:
as an order that they were challenging under review.

[01:23:07] Speaker 03:
And I take it that that question relates to whether the court has jurisdiction to review the service's biological opinion.

[01:23:16] Speaker 03:
I'm happy to take those points in order unless the court would like to direct me to a different topic first.

[01:23:23] Speaker 09:
So let me ask you, in your brief, you say what is before us.

[01:23:34] Speaker 09:
is the two orders by FERC and a third agency action, the biological opinion.

[01:23:45] Speaker 09:
So did you intend to be cagey about that?

[01:23:52] Speaker 09:
Or what?

[01:23:54] Speaker 03:
Well, Your Honor, I think that goes to we did not intend to be cagey, but there is some nuance here.

[01:24:02] Speaker 03:
We take that from the petitioner's position here.

[01:24:05] Speaker 03:
So this relates to an argument.

[01:24:08] Speaker 09:
Well, in your brief, you're telling me what rulings are under review.

[01:24:14] Speaker 03:
Yes, Your Honor.

[01:24:16] Speaker 09:
So are you, in the last sentence, telling me that is not under review?

[01:24:21] Speaker 03:
Your Honor, the way that I would word that, so our sentence in that certificate as to parties, this is Romanette 1.

[01:24:29] Speaker 03:
in our certificate says, the coalition's brief also seeks to challenge a third agency action.

[01:24:35] Speaker 09:
That's what I'm by cagey.

[01:24:37] Speaker 09:
Did you mean it's not before us?

[01:24:39] Speaker 09:
I couldn't understand.

[01:24:41] Speaker 03:
Well, Your Honor, the case law in this court is somewhat, I would say, describe it as fluid.

[01:24:50] Speaker 03:
I guess if I were writing the rule, then I would say that the petitioner is obligated under federal rule of appellate procedure 15

[01:24:58] Speaker 03:
to identify both the agency and the order that is challenging.

[01:25:02] Speaker 09:
And if you were to- So could I just ask you, counsel?

[01:25:05] Speaker 03:
Yes, Your Honor.

[01:25:07] Speaker 09:
You're representing the Department of Interior, Fish and Wildlife Service, through the Department of Justice.

[01:25:15] Speaker 03:
Correct, Your Honor.

[01:25:16] Speaker 09:
Did you argue in your brief that what you describe as the third agency order is not properly before this court?

[01:25:30] Speaker 03:
Your Honor, on page 49 of our brief, actually, I would say page 48 to 49, we note that we do raise this issue.

[01:25:45] Speaker 03:
I will put it that way.

[01:25:47] Speaker 03:
We raise it in the context of the petitioner's argument that the Fish and Wildlife Service cannot rely on its own administrative record when defending its biological opinion.

[01:25:58] Speaker 09:
And our respect counsel isn't that a completely different issue than what I'm asking you, because then you say, you know, we clarified this distinction in city of Tacoma.

[01:26:11] Speaker 09:
I don't want to spend too much time on this, but it does seem to me if the Department of Justice is saying this is not properly before us, you could say it.

[01:26:18] Speaker 09:
I didn't read it that way at all.

[01:26:20] Speaker 09:
And I don't know how the petitioners could respond.

[01:26:25] Speaker 03:
Fair enough, Your Honor.

[01:26:26] Speaker 03:
And this goes to the Court's jurisdiction.

[01:26:30] Speaker 03:
And if the Court is satisfied that the order is properly before it, then we're not here to press that argument.

[01:26:36] Speaker 03:
We, in fact, we're here to intervene and defend the biological opinion on its own terms.

[01:26:42] Speaker 03:
You are brief.

[01:26:44] Speaker 03:
Yes, Your Honor.

[01:26:47] Speaker 03:
And I would just point out on page 49 that we cite to the Court's introvision holdings decision.

[01:26:53] Speaker 03:
There is a lot of case law that

[01:26:55] Speaker 03:
again, sort of is fairly murky on this and suggests that a petitioner can resurrect its challenge to an agency action, but with later filings.

[01:27:05] Speaker 03:
And we address some of that, the factual basis for kind of unpacking that in footnote three.

[01:27:12] Speaker 03:
But again, we're here to defend the merits of the biological opinion.

[01:27:15] Speaker 09:
That's- I wanna be clear on this council because whatever we hold, it could be,

[01:27:21] Speaker 09:
And then you file a petition for rehearing in bank or a petition for rehearing saying this was not properly before us.

[01:27:29] Speaker 09:
And I want to see where you've made that argument.

[01:27:32] Speaker 09:
And when you cite city of Tacoma, that doesn't tell me that you're making that argument.

[01:27:38] Speaker 09:
And when you are raising this issue, it's in the context of whether this additional record can be made part of the court's record.

[01:27:48] Speaker 09:
which seems to be a different context.

[01:27:50] Speaker 09:
That's all I'm getting at.

[01:27:55] Speaker 03:
Your Honor, setting aside my personal views, I would say that the position of the Justice Department is laid out here.

[01:28:02] Speaker 03:
And I would not characterize this as arguing in any sort of length that the court lacks jurisdiction.

[01:28:09] Speaker 09:
Are you arguing at all?

[01:28:12] Speaker 09:
Because I'm trying to understand if we're going to get a petition for a hearing saying we lack jurisdiction.

[01:28:17] Speaker 09:
I didn't see that in your brief.

[01:28:21] Speaker 03:
I would agree with that, Your Honor.

[01:28:22] Speaker 03:
We have only raised this in passing.

[01:28:26] Speaker 09:
In passing.

[01:28:32] Speaker 03:
But I would say the court has to assure itself of jurisdiction.

[01:28:35] Speaker 09:
Of course we do, but I'd like to know what the Department of Justice thinks.

[01:28:39] Speaker 03:
I understand that, Your Honor, and I wish I could provide more assurance on that point.

[01:28:44] Speaker 03:
Not entirely unrelated to what I read from the While Good.

[01:28:47] Speaker 04:
If we don't review the FWS advice as part of the first report, then it escaped to review, didn't it?

[01:28:57] Speaker 03:
I would agree with that, Judge Santel.

[01:28:59] Speaker 03:
Pardon?

[01:29:00] Speaker 03:
Yes, Your Honor.

[01:29:01] Speaker 03:
Okay, thank you.

[01:29:04] Speaker 07:
Do you have a position on

[01:29:06] Speaker 07:
Imagine a case where it was a close call and FERC was utterly reasonable in that close call to rely on the Fish and Wildlife Service's biological opinion.

[01:29:20] Speaker 07:
But in examining the biological opinion itself, the close call actually breaks against the service.

[01:29:27] Speaker 07:
And it turns out the biological opinion is flawed.

[01:29:35] Speaker 07:
What's the remedy?

[01:29:38] Speaker 07:
Ferg's done nothing wrong, has done everything right under our opinion.

[01:29:42] Speaker 03:
Your honor, the city of Tacoma does intend to address these things, but it does also say that it's going to break up.

[01:29:48] Speaker 09:
I'm afraid, Mr. Hanging, you're breaking up.

[01:29:52] Speaker 09:
So we're having trouble hearing you.

[01:29:54] Speaker 03:
I apologize.

[01:29:56] Speaker 03:
Is that any better?

[01:29:59] Speaker 09:
Could be.

[01:30:00] Speaker 09:
A little better.

[01:30:01] Speaker 09:
Now and then.

[01:30:02] Speaker 03:
So.

[01:30:06] Speaker 03:
City of Tacoma does address this point.

[01:30:10] Speaker 03:
It talks about the two inquiries, the court's two inquiries overlapping.

[01:30:14] Speaker 07:
It doesn't address the remedy issue because they're denied the challenges to the biological opinion.

[01:30:22] Speaker 03:
That's correct, Your Honor.

[01:30:23] Speaker 03:
And I do think that the remedy is a tricky issue in this context, but we've argued if the court finds something about the biological opinion that is

[01:30:36] Speaker 03:
that is flawed, then we've argued that the court should remand without vacatur.

[01:30:41] Speaker 03:
And in fact, the company intervened and made that point.

[01:30:46] Speaker 03:
They're not appearing here to argue, but they made that point in their brief that any remand should be without vacatur.

[01:30:52] Speaker 07:
Well, basically vacatur or not is determined by the nature of the error, not the preferences of litigants.

[01:31:02] Speaker 03:
Well, Your Honor, I wouldn't characterize it as a preference.

[01:31:06] Speaker 03:
Their point is, and they're not here to speak to this, but their point is that the Endangered Species Act imposes both criminal and civil liability for take of endangered species.

[01:31:19] Speaker 03:
And so without a biological opinion place, they do face potential liability.

[01:31:28] Speaker 03:
And so for those reasons, and again, depending on what sort of

[01:31:33] Speaker 03:
an error the court were to find, we would argue that the court should leave the biological being in place for the service to better explain and respond to any concerns that the court has identified.

[01:31:47] Speaker 03:
But that's on remedy.

[01:31:48] Speaker 07:
I did want to address the- Well, on that better explanation, can you help explain when things are minor or not and what the reference point is?

[01:31:59] Speaker 07:
Because as I read the regulation, the reference point is

[01:32:03] Speaker 07:
The design location, scope, duration, and timing of the action.

[01:32:08] Speaker 07:
So that's the reference point.

[01:32:11] Speaker 07:
And the action here was FERC's proposal.

[01:32:16] Speaker 07:
It's called the staff alternative, but I'm going to call it the FERC proposal.

[01:32:19] Speaker 03:
Your Honor, we actually, so I agree with your reference to the regulation, but in our brief, we disagree that the

[01:32:27] Speaker 03:
staff proposal is the relevant federal action here.

[01:32:31] Speaker 03:
I think it's unclear what you should be comparing the services biological opinion to.

[01:32:39] Speaker 03:
So the petitioners say that it's the FERC staff alternative, because that's the solution that they prefer.

[01:32:45] Speaker 03:
But if you look at the petitioner's site to the definition of action, but don't include the entire regulatory text, I can give you the text

[01:32:58] Speaker 03:
I don't believe it is in the addendums, but it's 50 CFR section 402.02.

[01:33:06] Speaker 03:
And that defines what the action is.

[01:33:10] Speaker 03:
And it defines action as all activities or programs of any kind authorized, funded, or carried out in whole or in part by federal agencies.

[01:33:18] Speaker 03:
And then it says, and this is the part that's not in the petitioners reply brief, examples include, but are not limited to C, the granting of licenses.

[01:33:27] Speaker 03:
So.

[01:33:29] Speaker 07:
Well, I know, but the whole, I mean, it has to be minor as part of what you're reviewing in your biological opinion.

[01:33:37] Speaker 07:
And the action you're reviewing in your biological opinion is on the first page, or at least in the introduction.

[01:33:45] Speaker 07:
And that is what we're reviewing is the FERC staff alternative.

[01:33:49] Speaker 07:
That's what the whole biological opinion is about.

[01:33:53] Speaker 07:
The entire biological opinion is about the FERC staff alternative or not.

[01:33:58] Speaker 07:
It's not about status quo.

[01:34:01] Speaker 07:
And so I don't understand how in deciding whether this reasonable and prudent measure is minor or not, we're not comparing it to the entire action being analyzed in the biological opinion.

[01:34:19] Speaker 07:
Is it really your position that the action, the comparison point for whether something's minor is not in the biological opinion?

[01:34:28] Speaker 07:
is not what the whole biological opinion is about.

[01:34:30] Speaker 07:
That's your position across the board.

[01:34:36] Speaker 03:
So a couple responses.

[01:34:38] Speaker 03:
First, are you looking at JA 1155?

[01:34:42] Speaker 03:
That's the beginning of the biological opinion.

[01:34:46] Speaker 07:
JA, it's 867 for me, introduction.

[01:34:52] Speaker 07:
This document transmits the biological opinion based on our review of the FERC staff alternative.

[01:34:58] Speaker 07:
And then when I read this biological opinion, it's all about the FERC staff alternative.

[01:35:03] Speaker 07:
And you ultimately conclude that the FERC staff alternative, not the status quo, would not jeopardize the species.

[01:35:13] Speaker 07:
But the FERC staff alternative would result in a take unless the FERC staff alternative is adjusted by these reasonable and prudent measures.

[01:35:23] Speaker 07:
Yet when you say whether that reasonable and prudent measure is minor, pay no attention to the FERC staff alternative.

[01:35:30] Speaker 07:
That can't be right.

[01:35:32] Speaker 03:
Fair enough, Your Honor.

[01:35:34] Speaker 03:
So I think more importantly, when you're looking at the regulation itself, this is, and I did want to in this context address Judge Santel's questions about whether we apply deference or not.

[01:35:46] Speaker 03:
We don't think there's any deference required

[01:35:49] Speaker 03:
here because we are talking about, this is a regulation, this is not in the statute.

[01:36:09] Speaker 03:
Correct, your honor.

[01:36:10] Speaker 03:
So the service did not interpret it's this is a regulation that is the service developed the Endangered Species Act regulation for on on major versus minor changes.

[01:36:21] Speaker 03:
But the service did not offer some sort of interpretation that we would seek our Kaiser or Chevron deference on it simply

[01:36:30] Speaker 03:
that we're only looking at the plain language here of this regulation.

[01:36:34] Speaker 03:
And the plain language is about the basic scope, design, duration.

[01:36:38] Speaker 04:
Really for the court to apply its own understanding of the word minor and its own applicability to this case without claiming any debt.

[01:36:46] Speaker 03:
Yes, Your Honor.

[01:36:47] Speaker 03:
And so what I would say is, I think it's helpful actually to go back to the beginning of this license.

[01:36:53] Speaker 03:
So this license that Burke issued

[01:36:57] Speaker 03:
included two articles that are relevant here.

[01:37:00] Speaker 03:
One is Article 403, and the other is Article 405.

[01:37:03] Speaker 03:
In Article 403, FERC generally established that the reservoirs would be maintained within plus or minus three inches of the

[01:37:17] Speaker 03:
design of a particular design level.

[01:37:20] Speaker 03:
And in that context, FERC was referring to that as run a river.

[01:37:23] Speaker 03:
But when FERC issued the license, it recognized that, in fact, this equipment that BAMS had was outdated.

[01:37:32] Speaker 03:
It was hydropower equipment from the 1920s.

[01:37:35] Speaker 03:
And so

[01:37:36] Speaker 03:
the dams could not operate.

[01:37:38] Speaker 03:
It was impractical or impossible for them to operate in instantaneous run of river.

[01:37:43] Speaker 03:
So FERC recognized that there was some amount of play in the joints in terms of how these dams operated.

[01:37:50] Speaker 03:
And at the time, in Article 405 of the license, FERC said that the company was going to have to, within five years, consult with the Fish and Wildlife Service and come back and explain to FERC

[01:38:03] Speaker 03:
what a proper definition of abnormal low flows would be, or excuse me, abnormal, I think it's abnormal events.

[01:38:12] Speaker 03:
And so a lot of this all really stems from an understanding that this was something that the parties would have to revisit at a later date.

[01:38:22] Speaker 03:
And so when you fast forward to 2017, when the service finally came out with their biological opinion,

[01:38:31] Speaker 03:
This was something that was contemplated all along, that the service would consult with the company.

[01:38:36] Speaker 03:
The company was the one that applied and requested that this technical assistance letter be submitted as an amendment to their license.

[01:38:47] Speaker 03:
And so when you look at all of that, it's not a major change to the operation of this project to specify how

[01:38:59] Speaker 03:
precisely an abnormal low flow will occur.

[01:39:03] Speaker 03:
An example of a major change to me, if the service had come back and said, you have to replace your 1920s equipment, because it doesn't, you can't regulate flow properly through these dams.

[01:39:14] Speaker 03:
That would be a major change to the basic design of this project.

[01:39:18] Speaker 03:
But that's not at all what FERC said.

[01:39:21] Speaker 07:
Excuse me, Judge Millett.

[01:39:25] Speaker 07:
I'm sorry.

[01:39:26] Speaker 07:
Rogers, did you have a question?

[01:39:27] Speaker 07:
No.

[01:39:28] Speaker 07:
That's not me.

[01:39:29] Speaker 07:
It's somebody else talking.

[01:39:30] Speaker 07:
I don't understand why we're getting there this time.

[01:39:32] Speaker 07:
So that argument presumes that the word action in 402.14 is not the action that's analyzed in the biological opinion.

[01:39:56] Speaker 07:
Is that correct.

[01:39:58] Speaker 07:
That's your position.

[01:39:59] Speaker 03:
Your honor, even if the so if we're if we assume that the first staff alternative is the action that the services reviewing and that's subject to this biological opinion says right.

[01:40:10] Speaker 03:
Yes, your honor.

[01:40:11] Speaker 03:
Okay, so I'm not conceiving anything.

[01:40:14] Speaker 07:
That's exactly what you the biological opinion review.

[01:40:18] Speaker 03:
I was having trouble finding that spot, your honor, but regardless, I'll assume that, and I still would maintain that the FERC staff alternative, if you compare the FERC staff alternative with the service's biological opinion, that's not a major change.

[01:40:36] Speaker 03:
The service didn't tell, didn't say, well, we've got the FERC staff alternative and, you know,

[01:40:43] Speaker 03:
That staff alternative allowed for generational electricity.

[01:40:48] Speaker 03:
The service continued to say that generational electricity was allowed until you hit a low flow.

[01:40:57] Speaker 03:
And the FERC staff alternative took the same approach, as the petitioners have pointed out.

[01:41:03] Speaker 09:
So what about Judge Santel's earlier question about going from presser minus three inches to 12 feet in a wide, shallow, where it's been operating under the 2007 license for what, over half a century?

[01:41:22] Speaker 03:
Well, Judge Rogers, you can't go back and look at the half a century because- Well, you are with section, that's where you were.

[01:41:31] Speaker 09:
You say, look at the license.

[01:41:33] Speaker 03:
It's a federal act, but we're talking about a federal action and this dam was not licensed as a federal project until 2007.

[01:41:41] Speaker 03:
So you're looking at 2007.

[01:41:44] Speaker 03:
It still is, you know, I agree with you.

[01:41:46] Speaker 03:
You're talking about plus or minus three inches in the original license, but I would point out that there, again, article 405 in that original license contemplated further homework between the service and the company.

[01:41:58] Speaker 03:
But regardless,

[01:42:00] Speaker 03:
in terms of the 12 feet, that was sort of the worst case nightmare scenario.

[01:42:08] Speaker 03:
In that scenario, the service's goal here was to mimic the natural river flow and to find a way to address that flow in a drought situation.

[01:42:22] Speaker 03:
If you were talking about a 12 feet drop in these man-made reservoirs, then

[01:42:30] Speaker 03:
you know, the services measurement was designed to track the natural flow of the river.

[01:42:34] Speaker 03:
So you're talking about a drought then that is upstream, that has depleted the reservoirs and is leaving the muscles high and dry downstream.

[01:42:41] Speaker 03:
That's not a good situation for anyone.

[01:42:44] Speaker 03:
Everyone loses in that scenario, but it was never the services goal to, you know, to affect the elevation of these lakes.

[01:42:55] Speaker 03:
In fact, they,

[01:42:58] Speaker 03:
we've pointed out in our brief that they're, they analyze several, you know, follow that continue to follow this and start, you know, they started studying this in 2012 and they came out with their biological opinion in 2017.

[01:43:11] Speaker 03:
And in the starting in 2014, the service started, the company started using the technical assistance letter that, that regulates flow based on the linear scaling model.

[01:43:25] Speaker 03:
And from 2014 to 2017,

[01:43:28] Speaker 03:
the record doesn't reflect that you have some sort of precipitous drop of 10 feet of the reservoir level.

[01:43:37] Speaker 03:
So the concerns that the petitioners are raising were not borne out after the technical assistance letter went into effect.

[01:43:47] Speaker 07:
Can I just follow up?

[01:43:49] Speaker 07:
It's very important to me to understand what the action and issue and the biological opinion is.

[01:43:53] Speaker 07:
And it sounds like maybe we're

[01:43:55] Speaker 07:
I might be citing the wrong thing or something.

[01:43:57] Speaker 07:
You have the JA.

[01:43:59] Speaker 03:
Yes, Your Honor.

[01:44:00] Speaker 07:
Okay.

[01:44:01] Speaker 07:
And then 867.

[01:44:02] Speaker 03:
So, Your Honor, I apologize.

[01:44:05] Speaker 03:
I'm looking at volume four of the joint appendix just because that's where the services record is.

[01:44:09] Speaker 03:
I can pull up the, this is the, you're pulling that from volume three of the.

[01:44:15] Speaker 03:
Yes.

[01:44:17] Speaker 03:
Of the.

[01:44:17] Speaker 07:
Joint appendix is what I'm talking about.

[01:44:19] Speaker 03:
Yes, Your Honor.

[01:44:21] Speaker 03:
Well, Your Honor, there was a dispute over the record.

[01:44:22] Speaker 03:
And so we included our part of the record.

[01:44:25] Speaker 07:
I get that.

[01:44:25] Speaker 07:
I'm talking about the joint appendix, not your record.

[01:44:29] Speaker 07:
And that's a transmission letter for the biological opinion, which talks about reviewing the staff alternative.

[01:44:36] Speaker 07:
And then maybe more importantly on page JA873, the heading is biological opinion.

[01:44:43] Speaker 07:
And it says, description of proposed action, the FERC staff alternative.

[01:44:50] Speaker 07:
And all I'm trying to understand is I had thought that action that the biological opinion is analyzing is the same action referred to in your regulation.

[01:45:01] Speaker 07:
When you're assessing a reasonable and prudent measure, that action is the one that the biological opinion is analyzing.

[01:45:08] Speaker 03:
Your Honor, I agree.

[01:45:12] Speaker 03:
I will agree with that.

[01:45:13] Speaker 07:
It does compare.

[01:45:14] Speaker 07:
I'm sorry, go ahead.

[01:45:15] Speaker 03:
No, Your Honor, I would agree.

[01:45:16] Speaker 07:
Well, so then it would seem like you'd have to admit that the Fish and Wildlife Service misstepped here when it compared.

[01:45:23] Speaker 07:
They said it was minor because they compared it to what, in your brief, you said the company, the BAM company, NCPIS, had asked for and sort of what the technical assistance letter did or what the status quo is.

[01:45:38] Speaker 07:
So that was just an error.

[01:45:40] Speaker 03:
That's not the services area, Your Honor.

[01:45:41] Speaker 03:
That's mine.

[01:45:43] Speaker 07:
So, but what I would say is- Well, I think it's also in the services, now I'm on J916.

[01:45:55] Speaker 07:
Right, so that was in your brief, but here they say minimal effects to overall operations of the facility, which again seems to be referring to sort of status quo operations of NCPIS.

[01:46:08] Speaker 07:
It certainly had more than a minimal effect on the FERC alternative.

[01:46:13] Speaker 07:
It rejected, I mean, the prudent measure, the reasonable and prudent measure here is just rejecting the FERC alternative.

[01:46:23] Speaker 07:
Right, you found no jeopardy, but then as a, but you did find incidental take and for incidental take you say you can't do the FERC alternative, you have to do ours.

[01:46:33] Speaker 03:
So the FERC alternative more or less tracked, I don't think it was materially different from the 2007 license.

[01:46:42] Speaker 03:
It left the,

[01:46:43] Speaker 03:
lake level test in place.

[01:46:46] Speaker 03:
That was the FERC staff's position all along.

[01:46:50] Speaker 07:
So if we're talking to, I mean, there is a- And now your reasonable prudent measure is taking that away.

[01:46:55] Speaker 03:
That's correct, Your Honor.

[01:46:57] Speaker 07:
That's the point.

[01:46:58] Speaker 07:
So then how is that minor?

[01:47:01] Speaker 03:
Because it doesn't change the basic, this is still, it doesn't change the basic design scope or duration of this project.

[01:47:06] Speaker 07:
This is still a hydropower- As compared to FERC proposal, which- Yes.

[01:47:11] Speaker 03:
Just to make sure, my understanding was that part of the basic design and proposal was maintaining the lakes within the... Well, Your Honor, now you're referring back to the 2007 license, and I would maintain that, again, Article 405 of that original license contemplated that this would happen.

[01:47:28] Speaker 03:
When the service studied this matter in 2007, when the license was first put in place, it did not have

[01:47:35] Speaker 03:
A lot of data on the river flow on how these dams were going to affect this wasn't a federal project for 2007

[01:47:42] Speaker 03:
But there's a placeholder that the commission put in place in the 2007 license in Article 405 that said, you're gonna need to look at this again.

[01:47:50] Speaker 07:
I know, and that's what NCPIS came in here.

[01:47:53] Speaker 07:
That's exactly what's going on here.

[01:47:54] Speaker 07:
And so it seems to me, again, that the action that's being analyzed has got to be whether, as Ferck said, we will thank you NCPIS for coming forward, for following up as required.

[01:48:08] Speaker 07:
And here's what we will license.

[01:48:12] Speaker 07:
And that license did not allow the significant lowering of the rivers.

[01:48:19] Speaker 07:
And then Fish and Wildlife Service said, wait a minute, wait a minute.

[01:48:23] Speaker 07:
And FERC 2, we got to look at the effect on these species here.

[01:48:26] Speaker 07:
And that's when you all come in.

[01:48:28] Speaker 07:
And what you're analyzing is not the original license.

[01:48:31] Speaker 07:
You're analyzing whether the proposed agency action, which is FERC's staff alternative,

[01:48:40] Speaker 07:
whether that proposed agency action would jeopardize the species.

[01:48:45] Speaker 07:
You said, no.

[01:48:46] Speaker 07:
But there'll be incidental take.

[01:48:48] Speaker 07:
So as for that staff alternative action, we can only make minor changes.

[01:48:57] Speaker 07:
But you didn't.

[01:48:57] Speaker 07:
You made the big one that you all have been fighting about is whether we can control what happens to the lakes.

[01:49:03] Speaker 03:
Your Honor, so I agree with that.

[01:49:07] Speaker 03:
I think our point is that the

[01:49:10] Speaker 03:
we would maintain, so the service by regulation is not permitted to make major changes to a project.

[01:49:16] Speaker 03:
The service, when it does a biological opinion, doesn't come in and say, you know, there's going to be take, therefore you need to change your project.

[01:49:24] Speaker 04:
What the service does is say- Isn't that exactly what you did here?

[01:49:27] Speaker 04:
Isn't that exactly what service need here?

[01:49:31] Speaker 04:
Can you imagine there's going to be takes?

[01:49:34] Speaker 03:
You're going to have to make these changes.

[01:49:37] Speaker 03:
The changes are not minor or not major, your honor.

[01:49:40] Speaker 03:
That's our position.

[01:49:41] Speaker 03:
This is not a major change to the federal action.

[01:49:45] Speaker 04:
A 12 foot depth variation on a broad and shallow Midwestern Lake is not a major change?

[01:49:56] Speaker 03:
Your honor, that was a hypothetical that the FERC staff came up with.

[01:49:59] Speaker 03:
There is no record evidence showing that the services

[01:50:07] Speaker 03:
reasonable proof measure has resulted in a 12-foot drop.

[01:50:11] Speaker 07:
You said on the record it showed what was the biggest drop that happened on the record.

[01:50:15] Speaker 07:
I know there's been problems since then, at least according to Mr. Romain, but on the record before us, do we know how much of a drop there was?

[01:50:23] Speaker 07:
The biggest drop?

[01:50:24] Speaker 03:
Your Honor, I'd have to.

[01:50:27] Speaker 03:
So in our brief on page 44, we address this and say,

[01:50:34] Speaker 03:
The service was looking at the actual data that had come out from a six, for instance, a six-day low flow period in October 2015, and the lakes did remain in their design level of plus or minus three inches.

[01:50:45] Speaker 04:
But it could have made as much difference as the 12 feet of the post in the hypothetical, couldn't it?

[01:50:53] Speaker 04:
The wildlife services

[01:50:56] Speaker 04:
revision could result in that much change during drought period, didn't it?

[01:51:00] Speaker 03:
Well, your honor, that's exactly right, but I guess, I mean, if the Tippecanoe dries up.

[01:51:04] Speaker 03:
If that's right, if that's right.

[01:51:06] Speaker 04:
Yes.

[01:51:08] Speaker 04:
That's the baseline we've got to look at and decide whether this is a major or minor change, isn't it?

[01:51:16] Speaker 03:
I don't think the extreme scenario, I don't think the FERC staff's extreme calculation of what could happen

[01:51:23] Speaker 03:
theoretically is the basis for that.

[01:51:25] Speaker 03:
And I also would point out, your honor, that if the Tippecanoe in a drought dries up, then the lakes are going to drop 12, you know, they will continue to drop at some point.

[01:51:36] Speaker 07:
So your point is that that 12 foot thing was simply sort of a fantastical thing.

[01:51:43] Speaker 03:
It was, it was a worst, it was a forecast of a worst case scenario, but it also.

[01:51:47] Speaker 07:
They make a forecast of how likely that worst case scenario would be.

[01:51:51] Speaker 07:
Did they say this will never happen or this couldn't happen?

[01:51:54] Speaker 07:
It's a little hard for us to understand how worst case, worst cases happen, right?

[01:51:59] Speaker 07:
Or there are worst cases that never happen.

[01:52:01] Speaker 07:
And it's hard to know which one this was.

[01:52:03] Speaker 03:
Your Honor, I also, I agree, I agree.

[01:52:05] Speaker 04:
I'd rather just give a testimony that didn't involve a worst case scenario.

[01:52:12] Speaker 04:
in any context, the hydrology expert witness, have you ever heard one that did not include the worst case scenario as part of the consideration?

[01:52:24] Speaker 03:
That certainly should be a factor, your honor.

[01:52:28] Speaker 03:
But I would back up too and say, I mean, in some ways, so the commission's position has been that the dams should be operated to reflect run of river.

[01:52:39] Speaker 03:
And I think one of the things that the service has done definitively in the record is established that it was not in fact being run in some sort of instantaneous run of river.

[01:52:50] Speaker 03:
The dams do affect the flow of typical canoe.

[01:52:53] Speaker 03:
And when they're held to within a six inch margin, of course there are downstream impacts.

[01:53:00] Speaker 03:
There is a very large body of evidence that the service put forward that establishes that.

[01:53:08] Speaker 03:
The question is not, you know, the service has a very solid record to show that the dams are being operated in a manner that results in take to muscles downstream.

[01:53:21] Speaker 03:
And the question is what to be done about that.

[01:53:23] Speaker 03:
And, you know, FERC staff may have put forward a position that basically mimics the 2007 license, but that will leave the,

[01:53:37] Speaker 03:
that will leave FERC and the company liable for Endangered Species Act take if they were to maintain that position.

[01:53:49] Speaker 09:
So one of the arguments that there were takes elsewhere as well that FERC ignored, so you didn't have a control.

[01:53:57] Speaker 09:
And here, I think your brief refers to there was a field study in what, 2013?

[01:54:08] Speaker 03:
Your Honor, I think you're referring to the petitioner's argument that relates to the Indiana study from 2012.

[01:54:14] Speaker 03:
Is that?

[01:54:17] Speaker 09:
Could be.

[01:54:18] Speaker 09:
I'm referring to the field study.

[01:54:22] Speaker 03:
Yeah.

[01:54:23] Speaker 03:
Your Honor, the petitioners argue that the field study that Indiana did, this was during a bad drought in 2012.

[01:54:31] Speaker 03:
This is what alerted everyone that there was a problem.

[01:54:35] Speaker 03:
Indiana did a field study and found take of endangered mussels, death of dead mussels, endangered mussels downstream.

[01:54:43] Speaker 03:
And the petitioners now argue, well, look, you didn't study, you didn't look upstream and sample mussels above the dam to see if there were dead mussels, endangered mussels upstream.

[01:54:55] Speaker 03:
And therefore, how do you know that these dams were in fact influencing the flow of the river?

[01:55:01] Speaker 03:
So the answer to that is that we know that

[01:55:03] Speaker 03:
the dams are influencing the flow of the river because of all the other research and study that the services did.

[01:55:08] Speaker 03:
But on this specific point, Judge Millett alluded to this, that the petitioners didn't raise this in their rehearing argument.

[01:55:16] Speaker 03:
So we don't think that they're, that they jurisdictionally make this argument today and they- So they weren't in their rehearing argument before FERC.

[01:55:26] Speaker 03:
That's correct, Your Honor.

[01:55:26] Speaker 09:
All right, so city of Tacoma, it seems to me, suggests that they properly can raise it before this court in this proceeding.

[01:55:37] Speaker 03:
Well, then I would also point out that they haven't raised, they never gave the service an opportunity to even consider that argument.

[01:55:46] Speaker 09:
So I can't- But they did to the extent their experts raised it.

[01:55:53] Speaker 03:
Your honor, I believe that that argument, when they're talking about one of them, I believe that refers to, if it's, I want to confirm, but I believe that refers to a supplemental expert report that they submitted.

[01:56:10] Speaker 09:
Well, I was going over them yesterday and one of them, Dr. Chris or Dr. Engel made that argument.

[01:56:18] Speaker 09:
In other words, nobody was hiding the ball here.

[01:56:21] Speaker 09:
from the agency.

[01:56:22] Speaker 09:
That's all I'm getting at.

[01:56:24] Speaker 09:
And under City of Tacoma, I don't read it to say that they should properly raise these before FERC.

[01:56:33] Speaker 03:
Well, Your Honor, I want to address the critical point here, which is that the service did not have an opportunity to address this, because the report that they're referring to, it's Dr. Engel's report, and it's from

[01:56:50] Speaker 03:
I wanted to give the record site, but it's an October 2017 report.

[01:56:56] Speaker 03:
The biological opinion is from July 2017.

[01:56:58] Speaker 03:
So this is an after the fact attack on the service's biological opinion.

[01:57:05] Speaker 09:
And what's wrong with that?

[01:57:07] Speaker 03:
Because the service didn't have an opportunity to respond to that argument.

[01:57:11] Speaker 03:
The service's final action here.

[01:57:13] Speaker 09:
What did they do?

[01:57:15] Speaker 09:
So what should they have done?

[01:57:17] Speaker 09:
Should they have gone to the Fish and Wildlife Service

[01:57:20] Speaker 09:
and filed some new proceeding when our court has said they can raise their objections in the proceeding that we're in now.

[01:57:34] Speaker 03:
Well, Your Honor, that's it.

[01:57:35] Speaker 03:
So there was a lot of back and forth here.

[01:57:39] Speaker 03:
the service and the petitioners traded below throughout this proceeding.

[01:57:48] Speaker 03:
And if this was something that the petitioners thought was going to materially change the result here, then they could have raised that earlier.

[01:57:57] Speaker 07:
So your position would be, I guess, that they either have to somehow raise it to the service or raise it to FERC so that FERC will know why it's unreasonable to rely on their service and they didn't either here.

[01:58:09] Speaker 03:
Your Honor, almost, I do think that their expert report raises the issue.

[01:58:15] Speaker 03:
And I don't know how the timing of that relates to the rehearing order request, but their rehearing request didn't raise the issue.

[01:58:21] Speaker 07:
Well, the rehearing, we don't say, yes, it's not in the rehearing request.

[01:58:25] Speaker 03:
Correct, Your Honor.

[01:58:27] Speaker 03:
But I would point out, so this is the one piece of evidence that the petitioners point to as, well, what about this?

[01:58:35] Speaker 03:
They won't engage with the service on all the evidence that the service relied on.

[01:58:40] Speaker 09:
But they do certainly engage, and they did before the service, challenging what the service was looking at, and that you were looking at something that involved polar bears, not river flow.

[01:58:58] Speaker 03:
So, Your Honor, I guess I would start.

[01:58:59] Speaker 03:
So my point was as to take their take conclusion.

[01:59:03] Speaker 03:
The service had a lot of evidence that supports its take, its conclusion that the DM's operation was

[01:59:09] Speaker 03:
causing take downstream.

[01:59:12] Speaker 03:
And the petitioners really have not engaged with that evidence that the service presented.

[01:59:17] Speaker 03:
I believe you're referring to the linear scaling model.

[01:59:20] Speaker 03:
Is that?

[01:59:21] Speaker 09:
Yes.

[01:59:21] Speaker 09:
And that's what, I mean, FERC saw that some mussels had died, all right?

[01:59:29] Speaker 09:
And according to the Fish and Wildlife Service, it never examined mussels before the 2012 drought, all right?

[01:59:38] Speaker 09:
They really didn't know what was happening.

[01:59:41] Speaker 09:
All right?

[01:59:42] Speaker 09:
That's in the record.

[01:59:44] Speaker 09:
And then Mr. Clark makes some telephone calls or emails, et cetera.

[01:59:51] Speaker 09:
And he's read about this model.

[01:59:54] Speaker 09:
And he's told it's for overflows, not low flows.

[01:59:59] Speaker 09:
And here are the problems with applying it to low flows.

[02:00:03] Speaker 09:
And FERC marches ahead.

[02:00:04] Speaker 09:
Now, FERC,

[02:00:08] Speaker 09:
Not FERC, excuse me, the Fish and Wildlife Service marches ahead.

[02:00:13] Speaker 09:
It was aware of that challenge to what it was doing.

[02:00:20] Speaker 09:
That's all I'm getting at.

[02:00:21] Speaker 09:
This is not one of those situations where the first time you learn about this is in the brief they file in this court.

[02:00:32] Speaker 03:
No, Your Honor, I wasn't suggesting.

[02:00:34] Speaker 03:
So they certainly challenged, the petitioners have challenged

[02:00:38] Speaker 03:
services use of linear scaling.

[02:00:40] Speaker 03:
I agree with that.

[02:00:42] Speaker 03:
I was referring to the take conclusion.

[02:00:45] Speaker 09:
They're really, to me, are... They're using this model.

[02:00:51] Speaker 03:
I mean, they're... Sure, Your Honor.

[02:00:53] Speaker 09:
Yeah.

[02:00:54] Speaker 03:
Sure.

[02:00:54] Speaker 03:
I'm happy to speak to that.

[02:00:56] Speaker 03:
So, you know, I can unpack that in detail, but I think the things, quickly, the things that I would point to, I would start with the standard of review here.

[02:01:06] Speaker 03:
This court gives, and I'll refer the court to its Consent and VEPA decision last year.

[02:01:11] Speaker 09:
Please get over that, Council.

[02:01:12] Speaker 09:
That's not the issue we're discussing now.

[02:01:14] Speaker 03:
Sure.

[02:01:14] Speaker 09:
We've been over this three times, all right?

[02:01:16] Speaker 03:
Yes, Your Honor.

[02:01:17] Speaker 03:
OK, so let me talk about- Pack it.

[02:01:20] Speaker 03:
Yes, Your Honor.

[02:01:21] Speaker 03:
So let me talk about the evidence here.

[02:01:23] Speaker 03:
So the service had several studies from Professor Golster that sketched out, that laid out this idea of linear scaling.

[02:01:35] Speaker 03:
Those are a joint appendix 1037 to 1052.

[02:01:37] Speaker 03:
And then.

[02:01:39] Speaker 09:
And he did research on overflows and said applying it to low flows was problematic.

[02:01:47] Speaker 09:
So that's number one.

[02:01:48] Speaker 03:
So your honor, Professor Golster did not say that applying the linear scaling model to low flows was problematic.

[02:01:59] Speaker 09:
Well, somewhere in the record.

[02:02:01] Speaker 09:
I didn't know that word.

[02:02:04] Speaker 03:
So Your Honor, I would refer the court to two things on that point.

[02:02:07] Speaker 03:
All right.

[02:02:07] Speaker 03:
Joint appendix 1080, that's a record of the services conversation with Professor Golster.

[02:02:14] Speaker 03:
I'll pull that up because I think that that's an important piece of evidence here.

[02:02:17] Speaker 03:
So I'll pull it up and quickly.

[02:02:20] Speaker 09:
That's what we're talking about here.

[02:02:23] Speaker 09:
That's what's so disturbing about this, candidly.

[02:02:29] Speaker 02:
I'm sorry, 1080.

[02:02:29] Speaker 02:
Did I say 11?

[02:02:30] Speaker 02:
I may have said 11.

[02:02:31] Speaker 02:
JA 1080.

[02:02:45] Speaker 03:
So third paragraph, your honor, this is the service summarizing its conversation with, services biologist summarizing his conversation with Professor Golster.

[02:02:56] Speaker 03:
He, Professor Golster, also said that a linear scale is more likely to be correct during low flows because high flows have inherent confounding factors like different and high levels of precipitation or snowmelt across the watershed.

[02:03:09] Speaker 09:
This is Mr. Clark.

[02:03:11] Speaker 03:
Yes, your honor.

[02:03:12] Speaker 09:
Right?

[02:03:12] Speaker 09:
Yes, your honor.

[02:03:13] Speaker 09:
All right.

[02:03:14] Speaker 09:
Well, earlier.

[02:03:15] Speaker 09:
We've got Professor Goster and Mr. Clark.

[02:03:24] Speaker 09:
And they do talk about this is problematic, because all the research he did was overflows.

[02:03:31] Speaker 09:
And you have all of these geological interferences.

[02:03:38] Speaker 09:
So you're not going to get a linear tape.

[02:03:41] Speaker 09:
I mean, all right, so you're just saying fish and wildlife never knew that.

[02:03:47] Speaker 03:
No, Your Honor, I wasn't saying that.

[02:03:49] Speaker 03:
Your Honor, this is between the service biologist and Professor Golster.

[02:03:53] Speaker 03:
I'm not sure.

[02:03:57] Speaker 03:
So the petitioners have cited to a later conversation or some email exchanges like five years later that they had between Professor Golster and I think somebody, maybe a lake owner or somebody.

[02:04:11] Speaker 03:
and they try to question and undermine whether the service had a valid conversation with Professor Golster years before.

[02:04:20] Speaker 03:
I'm happy to address that.

[02:04:24] Speaker 04:
Do we have Professor Golster on record supporting what you say, Mr. Clark said, Dr. Golster said?

[02:04:31] Speaker 03:
Your Honor, if this were a civil trial, then I would call Professor Golster and I would call the service

[02:04:37] Speaker 03:
employee and I would cross examine them on this and make everyone an argument.

[02:04:41] Speaker 04:
You would give me a yes or no answer.

[02:04:43] Speaker 04:
There's no, no, your honor.

[02:04:46] Speaker 04:
Do you just have what Clark says?

[02:04:52] Speaker 03:
Your honor, I have what, what, what Mr. Clark said.

[02:04:55] Speaker 07:
Temporaneous record of what he, his conversation, correct?

[02:04:59] Speaker 03:
That's correct.

[02:05:00] Speaker 03:
And I'll point the court to his defenders of wildlife decision from 2016.

[02:05:04] Speaker 03:
in which it said, State Farm, the agency action is presumed to be valid.

[02:05:10] Speaker 03:
And here I think the agency's employees are presumed to be acting in good faith and to be doing the best that they can to solve a problem.

[02:05:22] Speaker 07:
Has the petitioner, did they introduce evidence showing that this is a false record of his conversation?

[02:05:30] Speaker 03:
um they didn't have this conversation or he didn't record his impressions accurately what your honor what i would say about that is um so um i would say yes your honor that that is the that that is what they are trying to say and what what what i would say in response that's in the reply brief i'm happy to pull up whether this is a civil action or an administrative proceeding

[02:05:56] Speaker 04:
Would it not have been the better practice to get something directly from the professor rather than I think we've had somebody's recollection of what the professor said?

[02:06:04] Speaker 03:
I would agree, your honor.

[02:06:05] Speaker 03:
The record reflects that the service's biologists investigated this.

[02:06:10] Speaker 03:
They asked questions.

[02:06:11] Speaker 03:
They tried to do the best job that they could if they had hired Professor Golster.

[02:06:16] Speaker 04:
Rather than a biological question.

[02:06:19] Speaker 03:
Excuse me?

[02:06:19] Speaker 04:
A hydrological question rather than a biological question.

[02:06:26] Speaker 03:
Well, Your Honor, so on that point, the biologists here are not hydrologists.

[02:06:32] Speaker 03:
Exactly.

[02:06:33] Speaker 03:
That's very clear.

[02:06:34] Speaker 03:
Yes, I agree with that.

[02:06:36] Speaker 07:
Did they consult with hydrologists?

[02:06:38] Speaker 03:
They consulted with hydrologists.

[02:06:40] Speaker 03:
And I think if you look at the court city of Tacoma decision, that makes clear that Congress has delegated the task of making these sorts of judgments and reviewing the evidence.

[02:06:54] Speaker 03:
exercising its expertise to the service.

[02:06:57] Speaker 09:
Where is the record?

[02:06:58] Speaker 09:
Where does the record show with whom the service consulted?

[02:07:04] Speaker 09:
Who was it?

[02:07:05] Speaker 07:
Which hydrologist?

[02:07:06] Speaker 09:
Hydrologist.

[02:07:07] Speaker 09:
And who was it?

[02:07:08] Speaker 09:
Yep.

[02:07:09] Speaker 09:
And at what point?

[02:07:10] Speaker 09:
What date?

[02:07:14] Speaker 03:
So, Your Honor, I would point to emails from 2013 to 2014.

[02:07:18] Speaker 03:
There's a series of emails we've included in the Joint Appendix.

[02:07:22] Speaker 03:
This is in volume four.

[02:07:23] Speaker 03:
where the services record is.

[02:07:26] Speaker 03:
I'll give you the joint appendix sites.

[02:07:28] Speaker 03:
It's JA 1069 to 1080.

[02:07:29] Speaker 09:
1069 to 1080?

[02:07:37] Speaker 03:
Actually, to 1079, 1080 is the discussion with Professor Coles.

[02:07:42] Speaker 09:
69 to 79?

[02:07:43] Speaker 09:
69 to 79.

[02:07:46] Speaker 03:
JA 1093 to 1097.

[02:07:51] Speaker 03:
and JA 1150 to 1154.

[02:07:53] Speaker 07:
Sorry, what was the second one?

[02:08:00] Speaker 03:
The second one was 1093 to 1097.

[02:08:06] Speaker 03:
And the third is joint appendix 1150 to 1154.

[02:08:10] Speaker 03:
So those are the three examples we included in the record.

[02:08:16] Speaker 03:
But I did want to point to one page in particular that I think

[02:08:20] Speaker 03:
is relevant here.

[02:08:21] Speaker 03:
So the petitioners say that we had one, in their opening brief, they say we had one conversation with the hydrologists and the hydrologists disagreed with us.

[02:08:30] Speaker 03:
But if you actually look at the email exchange, it goes back and forth between the US Geological Survey hydrologists and the Boris Clark, the services biologist.

[02:08:43] Speaker 03:
And I wanted to pull out one point in particular.

[02:08:45] Speaker 03:
On JA 1074,

[02:08:50] Speaker 03:
The USGS hydrologist, Donald Arvin, in the third paragraph says, although I don't have an exponent or coefficient to offer, your methodology seems on target.

[02:09:04] Speaker 09:
And that's the point petitioners make.

[02:09:08] Speaker 09:
You take that language and treat it as an endorsement when there's other language indicating concerns about applying high flow

[02:09:21] Speaker 09:
Model to low flow and even in the Senate.

[02:09:26] Speaker 04:
You just read is a qualification to what he's saying before the nonetheless, you don't have a and be Right.

[02:09:36] Speaker 03:
So the service acknowledged.

[02:09:37] Speaker 03:
Yes, sir.

[02:09:38] Speaker 03:
The service acknowledged that This was that there were a number of uncertainties.

[02:09:43] Speaker 03:
They were trying to find the best available science here.

[02:09:47] Speaker 03:
The petitioners and FERC more or less put forward only one alternative, and that is a lake level test.

[02:09:54] Speaker 03:
And the service very conclusively had found that that was not going to mimic the typical news natural flow.

[02:10:01] Speaker 03:
So the service was trying to find the best available way of estimating the flow here.

[02:10:08] Speaker 03:
I would point to a few other things that I think are really important about the linear scaling model here.

[02:10:12] Speaker 03:
One is the service validated its linear scaling model with real world data.

[02:10:17] Speaker 03:
This is important.

[02:10:18] Speaker 03:
And if there's one, two pages of the joint appendix that on behalf of the service, I would encourage the court to review.

[02:10:24] Speaker 03:
It's joint appendix 1136 to 1137, JA 1136 to 1137.

[02:10:30] Speaker 03:
That's where the service takes the river flow, low river flow data for 14 and a half years involving 600 days of low flows and compares that to the linear scaling model that it felt was the best available science.

[02:10:47] Speaker 03:
And that low flow data confirmed to the service that the model was accurate.

[02:10:53] Speaker 03:
And this is the court's Appalachian Power Company decision from 1998 says that the model has to relate to real world data.

[02:11:01] Speaker 03:
And that's what the service did here.

[02:11:02] Speaker 03:
Now the petitioner's only response is to point to the 2010 data and say, well, you've juked the numbers here because you pulled that data out.

[02:11:10] Speaker 03:
I have a couple of responses to that.

[02:11:13] Speaker 03:
The first response is that that

[02:11:15] Speaker 03:
the data is only pulled as to the maximum and minimum error bars there.

[02:11:21] Speaker 03:
It's the maximum and minimum errors.

[02:11:24] Speaker 03:
And the maximum error when the 2010 data was included is 44.1%, which sounds really high, but of course that's the maximum error.

[02:11:34] Speaker 03:
When you take out the 2010 data, then the maximum error drops to a 23% error and a minimum error is 20.4%.

[02:11:43] Speaker 03:
But much more relevant than all of this is that the average error between the flow coming from the gauge, the Winamac gauge, and the actual linear scaling prediction was only 0.4%.

[02:11:57] Speaker 03:
0.4%.

[02:12:00] Speaker 03:
And the upper and lower quartile errors are 2.6 and minus 7.1%.

[02:12:06] Speaker 03:
So I'm not a mathematician, but

[02:12:09] Speaker 03:
It seems to me that this is a very reasonable way for the service to validate its linear scaling model.

[02:12:16] Speaker 09:
All right.

[02:12:19] Speaker 09:
Why don't we hear from Petitioners Council?

[02:12:21] Speaker 09:
Thank you, Council.

[02:12:23] Speaker 02:
Thank you, Your Honor.

[02:12:25] Speaker 09:
Council for Petitioners, give you a couple of minutes here.

[02:12:36] Speaker 01:
Now I believe I'm unmuted, can you hear me?

[02:12:39] Speaker 01:
Sure, thank you.

[02:12:41] Speaker 01:
Go ahead, good.

[02:12:44] Speaker 01:
I want to respond first to the idea that other than putting it in a supplemental expert report, we never gave the service notice and they had no opportunity to respond to the lack of scientific rigor involved in not looking at simultaneous upstream

[02:13:04] Speaker 01:
muscle deaths.

[02:13:06] Speaker 01:
And that has nothing to do with the 2013 study because we're talking about 2012.

[02:13:11] Speaker 01:
At the same time, there were dead endangered muscles, nine of them, downstream from the dam.

[02:13:18] Speaker 01:
There were, I don't know how many, but many is the word used by IDNR, dead muscles upstream of everything, including

[02:13:28] Speaker 01:
not endangered, but threatened rabbit's foot muscles.

[02:13:32] Speaker 01:
And that is, you know, and the question we've posed from that is how can they tell that it's

[02:13:40] Speaker 01:
the lake and dam that's causing the death downstream, if way above the lake and dam, the same thing is happening to mussels.

[02:13:48] Speaker 01:
And they've never tried to answer that question.

[02:13:51] Speaker 07:
Now that's not fair.

[02:13:52] Speaker 07:
That's this chart that I pointed out to you.

[02:13:54] Speaker 07:
They did an extensive study that showed you can't just look at it that way because the dams themselves, even without generating electricity, make a substantial difference in downflow.

[02:14:04] Speaker 07:
So it's not, I don't think it's fair of you to say that they haven't even tried to answer it.

[02:14:08] Speaker 07:
I think they've answered it.

[02:14:10] Speaker 07:
And you weren't even aware of it or aware that it involved no electricity generation.

[02:14:14] Speaker 01:
Your honor, I may have misspoken and therefore been misunderstood.

[02:14:19] Speaker 01:
What I'm talking about is they never examined why the muscles upstream were dying at the same time.

[02:14:29] Speaker 01:
They just assumed.

[02:14:30] Speaker 01:
Now, they later did all kinds of studies, but they never once questioned

[02:14:38] Speaker 01:
what is it that's going on that causes muscles upstream and downstream to die at the same time in a drought?

[02:14:44] Speaker 01:
Never.

[02:14:45] Speaker 01:
They never did that.

[02:14:48] Speaker 01:
And so that was in the supplemental expert report.

[02:14:54] Speaker 01:
And he said, well, that came late in the game.

[02:14:55] Speaker 01:
It came in October 3rd, I believe, October of 2017.

[02:15:01] Speaker 07:
Well, after the biological opinion issued.

[02:15:04] Speaker 01:
after the biological opinion was issued.

[02:15:06] Speaker 07:
And you didn't present this either in your re-hearing.

[02:15:09] Speaker 01:
Well, as we pointed out in our initial brief at page 36, in December 13, 2017, five months after transmittal of the biological opinion,

[02:15:23] Speaker 01:
the Forest Service claimed that someone with hydrological expertise had been involved.

[02:15:32] Speaker 01:
That's the first time they did.

[02:15:34] Speaker 01:
It was a December 13 letter to FERC.

[02:15:39] Speaker 01:
It appears that Joint Appendix 965 to 968

[02:15:45] Speaker 01:
It was written in response to the protest coalition's October 3, 2017 letter and supplemental reports critical of the biological opinion.

[02:15:58] Speaker 01:
It says that's what it's written in response to.

[02:16:00] Speaker 01:
So they had every chance to respond.

[02:16:04] Speaker 01:
And they said for the first time that they had engaged

[02:16:12] Speaker 01:
and experienced hydrologists working in the Midwest Region Office of the National Wildlife Refuge System to review our work, particularly with respect to the criticism of Chris and Engel, and to evaluate the hydrologic component of their conclusions.

[02:16:32] Speaker 01:
Well, they did respond.

[02:16:34] Speaker 01:
They responded in five-page.

[02:16:37] Speaker 01:
They gave the observations of this

[02:16:42] Speaker 01:
after the fact hydrologists, they got involved.

[02:16:46] Speaker 01:
But not once did he mention the words linear scaling.

[02:16:49] Speaker 01:
So he didn't attempt to validate the use of linear scaling.

[02:16:53] Speaker 01:
And not once did he address this question about how can you tell if upstream and downstream muscles are dying at the same time from the same drought that only the downstream ones are being killed by the dam.

[02:17:10] Speaker 01:
So they had their opportunity.

[02:17:12] Speaker 01:
One other thing, because it's something that you and Judge Rogers both spoke to, and that is eliminating incidental take.

[02:17:26] Speaker 01:
Judge Rogers, you asked Ms.

[02:17:29] Speaker 01:
Rylander that all we're talking about is what drawdown is necessary to eliminate incidental take.

[02:17:37] Speaker 01:
And Judge Millett, you asked a question about we got a non-Jeopardy opinion, but we still got to look at incidental take.

[02:17:48] Speaker 01:
So I want to repeat the argument that we have made, an argument to which they did not respond, they being Fish and Wildlife Service, that the only thing supporting their finding that

[02:18:07] Speaker 01:
incidental take would occur or was likely to occur if the staff alternative were put into place.

[02:18:17] Speaker 01:
The only thing that supports the issuance of an incidental take statement is their flawed

[02:18:26] Speaker 01:
linear scaling calculations, because it is based on levels of flow downstream from the dam that are in turn based on levels of flow upstream from the other dam that are based in turns on linear scaling that has nothing to do with low flows.

[02:18:45] Speaker 01:
So there shouldn't even, I mean, we've argued this.

[02:18:48] Speaker 01:
We've argued it during the proceeding.

[02:18:50] Speaker 01:
We've argued it.

[02:18:51] Speaker 01:
There should not have been an incidental take statement.

[02:18:54] Speaker 01:
There shouldn't be a reasonable and prudent measure and certainly not one that makes major changes.

[02:19:01] Speaker 01:
And with that, I'll stop unless the court has questions for me.

[02:19:07] Speaker 09:
Any questions?

[02:19:10] Speaker 09:
Thank you, counsel.

[02:19:11] Speaker 09:
We will take the case under advisement.