[00:00:00] Speaker 03: 7276 and 24-7377 each side will have 25 minutes, but I know we have a division of time [00:00:09] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:00:11] Speaker 01: Jacob Ecker for the Federal Government. [00:00:13] Speaker 01: This Court should dismiss the Center's appeal for lack of jurisdiction. [00:00:16] Speaker 01: The Court's decision in Alsea Valley is on all fours and dictates that the District Court's remand order is not final for purposes of appellate jurisdiction. [00:00:24] Speaker 01: The case below involved the National Marine Fisheries Service designation of critical habitat for two Arctic seal species. [00:00:30] Speaker 01: The District Court held that the agency failed to consider certain factors relating to the size and location of the designation, and the District Court remanded to the agency for further proceedings. [00:00:39] Speaker 01: The agency initially appealed, but voluntarily dismissed that appeal and accepted the court's remand order. [00:00:45] Speaker 01: Without the agency's participation, the district court's remand order is not final under Alsea Valley. [00:00:50] Speaker 01: The principal reason. [00:00:53] Speaker 03: I have a question about how to read the district court's remand order. [00:00:57] Speaker 03: So it seems possible to read it as actually precluding the service from designating the same territory again on remand. [00:01:10] Speaker 03: where the court says that it did not read the ESA to permit the service to designate nearly all of the seal's occupied habitat within the United States as indispensable to the seal's conservation. [00:01:20] Speaker 03: Is that sentence saying that the same designation cannot be done on remand? [00:01:25] Speaker 01: I don't read the district court's remand order that way. [00:01:28] Speaker 01: The way I think the government has read it is that it's a general remand like those in Alsea Valley and in your 2023 decision in CBD where the agency can potentially reach the same outcome on remand. [00:01:40] Speaker 01: It may or may not, but the point of those cases and the remand here is that the decision need not come to this court until the agency's remand proceedings have concluded. [00:01:52] Speaker 05: I guess I want to make sure that government is taking the same position here that I read your briefs because I have the same issue Judge Friedland has. [00:02:02] Speaker 05: It seems to me that jurisdiction will depend on the scope of and the reading of the district court's order. [00:02:10] Speaker 05: So in your briefs you said that it's still possible to designate the same areas as critical habitat and you said that [00:02:20] Speaker 05: there would still be this possibility of the same result, but taking into account the factors identified. [00:02:29] Speaker 05: So is that the government's position today? [00:02:32] Speaker 01: Yes, Your Honor. [00:02:33] Speaker 01: And you'll see that we maintained that position in our third brief after we dismissed our appeal. [00:02:38] Speaker 01: So we maintain that position today, which is that the district court's remand order is the type of general remand order, like in Elsie Valley and its progeny. [00:02:50] Speaker 03: Does the fact that you're saying that affect how we should read this? [00:02:53] Speaker 03: I mean, if we wouldn't have read it that way, what's the implication of you saying this today? [00:03:00] Speaker 01: That's a fair question, Your Honor. [00:03:03] Speaker 01: I think the court is entitled to read the district court's opinion in the way that it deems fit. [00:03:10] Speaker 01: Our view is that the district court's remand order is a general one, and so I think [00:03:17] Speaker 01: The point that the government makes at this point is that that order has placed the decision-making process back before the agency. [00:03:26] Speaker 01: So the agency is going to parse that decision in the first instance. [00:03:29] Speaker 01: If this court disagrees with how the agency views the district court's remand order, it would have the opportunity following a subsequent challenge and a subsequent appeal to pass on that. [00:03:43] Speaker 03: But if, well, [00:03:46] Speaker 03: If the district court has taken off the table doing the same thing again, then we're kind of in a similar situation to Crowe, aren't we? [00:03:56] Speaker 01: I'm not sure that's right, because in Alsea Valley itself, the district court had taken off the table one possible outcome, which in that case, the agency had listed only naturally spawning coho salmon and not [00:04:11] Speaker 01: And the district court, as this court's opinion explained, had sort of cordoned off and put a border around that outcome. [00:04:22] Speaker 03: As I read it, they'd cordoned off a possible rationale for a decision, but not exactly an outcome, because it was more just like you need to be consistent, then you can't do this. [00:04:36] Speaker 01: I think, your honor, if the court reads the district court's remand order in the way that you're suggesting, it does bring it closer to cases like Crowe than Alcia. [00:04:48] Speaker 01: you know, closer than it would be under our reading of the district court's remand order. [00:04:52] Speaker 01: I'm not sure that there's a case that squarely addresses this exact situation. [00:04:57] Speaker 01: So under that reading, now we dispute that reading. [00:05:00] Speaker 01: And so we maintain that the remand order is a general one. [00:05:04] Speaker 01: If the court disagrees, I think Alsea Valley ought to still apply because there's a broad range of outcomes that remain possible on remand. [00:05:13] Speaker 05: That's a little bit different than Crowe. [00:05:16] Speaker 05: as I understand it, because there was essentially ordering the Fish and Wildlife Service to include something in its final order, which is a little bit different here. [00:05:26] Speaker 01: That's right. [00:05:27] Speaker 01: So the crow, I think, [00:05:31] Speaker 01: It's about this idea that there's really nothing left for the agency to do on that specific issue. [00:05:38] Speaker 01: The district court's remand order required that the ultimate rule include this recalibration facet of it. [00:05:47] Speaker 01: And that was like other cases where there's really nothing left for the agency to do on remand. [00:05:53] Speaker 01: And so as a practical matter, it's final. [00:05:56] Speaker 01: It's hard to figure out what Crowe was doing, though, because it seems like [00:06:00] Speaker 03: that could have been appealed later. [00:06:01] Speaker 03: And so, I don't know, do you have an explanation of what we should make of Crow and the fact that that could have been appealed later? [00:06:08] Speaker 01: It's fair enough. [00:06:08] Speaker 01: I mean, it's a fair question. [00:06:09] Speaker 01: I think there is some tension in the court's case law. [00:06:13] Speaker 01: I think your 2023 decision addresses that aptly. [00:06:17] Speaker 01: And I don't think the court should depart from the reasoning in the 2023 CBD decision here. [00:06:22] Speaker 04: I just want to, on the question of how to read the district court's order, [00:06:27] Speaker 04: I understand in the principal brief by the NMFS, there's the, at page 28 to 29, seemingly add intention with your current read. [00:06:39] Speaker 04: So that also just highlights, I guess, maybe that the district court order is susceptible to more than one reading. [00:06:48] Speaker 04: But I mean, here it says the court repeatedly referred to the 160 million acre size of the designations [00:06:55] Speaker 04: In the course of concluding that the court does not read the ESA to permit the service to designate nearly all of its seals occupied habitat, and goes on to argue all the reasons why that was wrong. [00:07:07] Speaker 04: And there is no sound basis for the district court to manufacture an additional prohibition against designating nearly all of a species occupied habitat, which seems to me as at least the original read was that the district court did, in fact, prohibit [00:07:24] Speaker 04: designation of nearly all of the species occupied habitat. [00:07:28] Speaker 01: I certainly understand what you're saying, Judge Sung. [00:07:32] Speaker 01: I think we read the remand order as more general than at least the Crow Indian Tribe remand, because it's not directing a particular outcome. [00:07:40] Speaker 01: In that case, part of the remand required an aspect of the rule be included. [00:07:44] Speaker 01: And here, regardless of the rationale, which our opening brief, which is no longer before the court attacked, that is not part of the remand order. [00:07:53] Speaker 01: It's part of the rationale that the agency is going to have to grapple with on remand. [00:07:58] Speaker 01: And so the government's view is that this case is closer to Alsea Valley, Pitt River, and the 2023 CBD decision than it is to Crow and cases like it. [00:08:08] Speaker 01: And so we urge the court to dismiss for lack of a better word. [00:08:10] Speaker 03: Sorry, can I go back to this question of whether there's some sort of a stopple or something from what you're saying today? [00:08:15] Speaker 03: How do we know that on remand, the agency would read this the way you're saying today? [00:08:27] Speaker 01: I don't. [00:08:28] Speaker 01: I can't provide a guarantee on that front. [00:08:31] Speaker 01: And I think that's part of why Alsea Valley supports dismissal, because I can't predict the agency's outcome at this point. [00:08:42] Speaker 01: And it may mean that these proceedings are unnecessary, or it may mean that a later appeal is the proper time for that to get adjudicated. [00:08:51] Speaker 05: So your position is, on remand, the agency can say that, [00:08:58] Speaker 05: it had no leeway, that it had to or it must issue in a certain manner. [00:09:06] Speaker 05: That really doesn't, it doesn't seem right to me that you can stand here and make that, make representation as you have under part of the agency and then the agency would be able to flip that. [00:09:20] Speaker 01: The government's position today is that that's not what the remand order says. [00:09:24] Speaker 01: I can't control the outcome before the agency, but my reading of the government's reading is that that's not. [00:09:29] Speaker 05: Can the service go back and say, you must do this? [00:09:38] Speaker 05: You cannot. [00:09:38] Speaker 05: You cannot or you must. [00:09:40] Speaker 05: You cannot do this. [00:09:41] Speaker 05: You cannot designate nearly all of the SEALs habitat. [00:09:45] Speaker 01: I understand the court's concern, and it comes from that language that Judge Sung quoted. [00:09:49] Speaker 01: I just can't get ahead of the agency's process at this point. [00:09:52] Speaker 01: And I know that's unsatisfying. [00:09:55] Speaker 04: What you're saying today isn't binding on the agency on remand? [00:09:58] Speaker 01: I don't think so. [00:10:00] Speaker 03: And how long do you think this will take? [00:10:04] Speaker 01: I do not know. [00:10:05] Speaker 01: I know they've started thinking about what a remand would look like. [00:10:08] Speaker 01: Given this appeal and the forceful arguments that the center has made for jurisdiction, they've not yet gotten very far in that process because they want to see how this [00:10:17] Speaker 03: because we're in a situation right where last time they need to have a court order to actually do this. [00:10:22] Speaker 03: I mean, will this never happen? [00:10:25] Speaker 01: I don't know the answer. [00:10:27] Speaker 01: I know that if there is substantial delay, that there are rights of action that can accrue from that context. [00:10:35] Speaker 01: You're right to point to that, Judge Friedland. [00:10:38] Speaker 01: The center has sued in the past seeking designations, and the ESA provides for that. [00:10:44] Speaker 04: Is that another distinction between this case [00:10:47] Speaker 04: I'll see where, if I remember correctly, the agency at the time we were considering the case and whether we had jurisdiction, the agency had already sort of presented a plan about what it was going to do in engaging a new consideration of the rules that did seem to think that these other options for reaching the same outcome were actually viable and potentially going to happen as a practical matter. [00:11:11] Speaker 01: That's true. [00:11:11] Speaker 01: The court did point to that in LC. [00:11:13] Speaker 01: I'm not sure that those same dynamics were at play in CBD or Crow. [00:11:18] Speaker 01: I'm just not recalling on the top of my head. [00:11:20] Speaker 05: Do you think if your position is correct, would we also lack jurisdiction over Alaska's cross appeal? [00:11:28] Speaker 01: Well, so Alaska, I think you could certainly dismiss that cross appeal as well. [00:11:32] Speaker 01: They've committed to voluntarily dismiss that appeal. [00:11:37] Speaker 01: And we haven't taken a position on Elsie Valley, but I certainly understand extending the logic to that appeal as well. [00:11:45] Speaker 03: I guess we can ask them about that. [00:11:47] Speaker 01: Thank you, Your Honors. [00:11:48] Speaker 03: OK, thank you. [00:11:49] Speaker 03: So who's next? [00:12:05] Speaker 02: Good morning, Your Honors, and may it please the Court, Kristin Moncel, on behalf of Center for Biological Diversity, Appellants Cross Appellees. [00:12:12] Speaker 02: I'd like to reserve five minutes of my time for rebuttal. [00:12:16] Speaker 02: And before addressing the merits, I'd like to address why this court has jurisdiction to hear this appeal. [00:12:21] Speaker 02: And that's because this case falls squarely within the exceptions articulated by this court in Alcia Valley. [00:12:27] Speaker 02: And to comply with the district court's order on remand, the agency must apply entirely new substantive factors that the district court invented, such that it won't be the same decision [00:12:41] Speaker 02: on remand. [00:12:43] Speaker 02: It will be based on entirely new substantive considerations mandated by the district court. [00:12:49] Speaker 03: I know you argued this in your brief too, but I have trouble understanding. [00:12:53] Speaker 03: It seems like you're basically saying the procedures the agency will follow, the things the agency will need to consider are wrong things. [00:13:01] Speaker 03: But if the agency could get to the same outcome about what is designated, I'm not sure why those procedures or considerations are really of interest to you. [00:13:09] Speaker 03: You really care about the outcome. [00:13:10] Speaker 03: Like, why do you care if the agency thinks about a few extra things? [00:13:14] Speaker 02: It's true that we care about the ultimate outcome, but the agency in its original merits brief said, and I quote on page 222, that the court went so far as to state its interpretation sufficiently broadly as to appear to foreclose the agency's designations for the SEALs. [00:13:34] Speaker 02: altogether. [00:13:35] Speaker 03: Okay, that's a different argument though. [00:13:36] Speaker 03: That's the outcome can't be the same and that's not about sort of the procedures along the way. [00:13:41] Speaker 03: So I guess I personally think that's the much stronger argument than something about what has to be considered along the way. [00:13:47] Speaker 02: Yeah, I think both are true here. [00:13:49] Speaker 02: The constrictions that the district court put on the agency's remand mean that it essentially cannot issue [00:13:57] Speaker 02: the same decision, both legally and practically. [00:14:01] Speaker 02: And it's the legal aspect of it that I think maybe is the more specific answer to your question, Your Honor, that the agency now has to apply this new substantive framework that does not exist in the statute and that elevates the bar for critical habitat designations. [00:14:19] Speaker 02: And that's why we think this case is sort of on point with the Crow Indian Tribe case. [00:14:25] Speaker 02: They are the district court's decision [00:14:27] Speaker 02: foreclosed any relief to the interveners on the issue of whether a future delisting rule had to include recalibration, because the district court ordered that it did. [00:14:38] Speaker 02: And that's the same situation we have here. [00:14:41] Speaker 02: The district court order means that a future critical habitat designation must apply the standard for an unoccupied critical habitat and designating occupied critical habitat, which this court has repeatedly recognized is a much more onerous standard. [00:14:56] Speaker 02: must evaluate foreign conservation efforts and must consider excluding the areas Alaska wanted out. [00:15:04] Speaker 02: And this appeal is the only way that we can get those issues heard, because the legal questions are distinct from whether the ESA mandates that the agency do certain things versus whether it's... It seems to me there's sort of a question of you could win the battle here and lose the war, and that we could have jurisdiction, and if we disagree with you on the merits, [00:15:26] Speaker 05: then you would never have the opportunity to go back, as you might on a remand. [00:15:32] Speaker 05: And so I guess your position is jurisdiction and decide based on this record. [00:15:38] Speaker 05: Is that your position? [00:15:39] Speaker 02: Yes, that's correct, Your Honor. [00:15:41] Speaker 02: We think the district court was wrong and elevates the bar for critical habitat designations in a manner that is inconsistent with the plain language of the statute. [00:15:50] Speaker 03: So can I go back to what you think would happen on remand? [00:15:53] Speaker 03: So if on remand, [00:15:55] Speaker 03: The agency did these procedures, came up with a narrower designation of territory. [00:16:02] Speaker 03: Why couldn't you appeal then and say, this is too narrow and it's because of these three interpretations that are wrong, and appeal then, later, in five years, or 10 years, or whatever long time it would be, to say these same things you're saying now? [00:16:17] Speaker 02: I think the distinction is that the legal question that the court would be addressing at that point would be different than it is addressing now. [00:16:27] Speaker 02: In what way though? [00:16:28] Speaker 03: Because if the agency uses these same three principles that you think are wrong, why would it be different later? [00:16:34] Speaker 03: You'd still be saying they should not have relied on those. [00:16:36] Speaker 02: Because the district court's order [00:16:39] Speaker 02: It is based on its interpretation of the plain language of the Endangered Species Act and what the agency must do in designating critical habitat, not just for these seals, but for any species. [00:16:52] Speaker 02: And so it has repercussions outside of this case as well. [00:16:56] Speaker 02: However, [00:16:57] Speaker 02: if the agency does consider these three factors and we ultimately decide to challenge that decision, I think the question the court will be posed with at that point is whether it was an abuse of discretion for the agency to have considered those factors, not this plain language of the ESA argument that we have now. [00:17:19] Speaker 02: Why wouldn't that be preserved? [00:17:20] Speaker 05: I mean, why wouldn't that be part of the package, I think, is what we're trying to get at, that would be appealed [00:17:27] Speaker 05: from the agency's decision is not just going to be these factors. [00:17:31] Speaker 05: Basically, it's going to have to incorporate in its decision a number of these other statutory interpretations. [00:17:37] Speaker 05: So wouldn't the whole package come back up? [00:17:40] Speaker 02: Well, again, I would point the court to the Crow Indian tribe case where this court held it had jurisdiction over an issue because the district court's remand order constrained the agency's discretion in such a way that it had to include this recalibration issue in any future delisting rule. [00:18:01] Speaker 02: So even though interveners in that case could have ultimately gotten what they wanted, which was the delisting of the grizzly bear, that could only occur [00:18:09] Speaker 02: if the agency did this specific substantive aspect of its rulemaking. [00:18:17] Speaker 02: And that's the same situation that we have here. [00:18:20] Speaker 02: The district court has imposed substantive obligations on the agency that don't exist. [00:18:25] Speaker 03: So as I read Crowe, though, Crowe treated that recalibration as sort of an end in itself. [00:18:31] Speaker 03: I admit I don't really understand that, because it seems more like a procedure along the way to a decision. [00:18:38] Speaker 03: That wasn't treated that way. [00:18:40] Speaker 03: It was like, including this thing is kind of the end of itself. [00:18:43] Speaker 03: And you're talking more about the procedures along the way to the end of itself, as I understand your argument. [00:18:50] Speaker 03: It's like, what's going to get considered when you get to get to the designation? [00:18:55] Speaker 02: Yes, however, I would also note that as this court said in Pitt River and other cases, the Alsea Valley didn't create a hard and fast rule against an appeal in this situation, and that the exceptions are considerations rather than strict prerequisites. [00:19:15] Speaker 02: So I think that the court can look at the exceptions through a practicality lens. [00:19:21] Speaker 02: And here, I think it makes [00:19:24] Speaker 02: sense that these purely legal issues of statutory construction be considered now rather than waiting the uncertain outcome of some protracted remand based on what you know we think are clearly erroneous legal premises. [00:19:41] Speaker 05: That kind of begs the question I mean that might be your preference to get those statutory determinations settled now but that doesn't say [00:19:51] Speaker 05: What we originally asked is, isn't the whole package going to come back up if you disagree with the ultimate direction that the service goes? [00:20:00] Speaker 05: Yes. [00:20:01] Speaker 02: It would come back up. [00:20:02] Speaker 02: It could. [00:20:03] Speaker 02: So you'd prefer it now, not later? [00:20:05] Speaker 02: Well, I think it also makes judicial sense in the interest of judicial efficiency, which I think is the whole premise underlying the Alcalcia Valley line of cases. [00:20:14] Speaker 02: And I think if it does, [00:20:15] Speaker 02: If it does look the same, then Alaska is going to sue. [00:20:18] Speaker 02: And if it doesn't look the same, then we might. [00:20:21] Speaker 02: So it makes more sense to just consider these fundamental issues now that, again, have repercussions not just for these seals that are now deprived of these protections, but many other species for their critical habitat designations. [00:20:37] Speaker 03: Sorry, can I just? [00:20:37] Speaker 03: So now it seems like maybe you're [00:20:40] Speaker 03: kind of taking the premise that it actually could be appealed later. [00:20:44] Speaker 03: And I just wanted to follow up to make sure I understand your position. [00:20:46] Speaker 03: So it seems like if the agency on remand felt bound by these statutory interpretations that you think are wrong, it would probably say that. [00:20:57] Speaker 03: And so then there could be a later appeal where we would have to figure out these statutory interpretation questions. [00:21:03] Speaker 03: But your earlier position was that somehow that wouldn't happen. [00:21:05] Speaker 03: Could you just explain why? [00:21:06] Speaker 02: I think there's a legal aspect of this and then a practical aspect of this. [00:21:13] Speaker 02: And I think practically speaking, it's very unlikely we would see the same rule on remand because of the constrictions the district court put on the agency and because of [00:21:24] Speaker 02: what the agency has already said about how it's interpreting the district court remand to essentially preclude these designations. [00:21:32] Speaker 03: Wait a second, where are you thinking they're saying that? [00:21:34] Speaker 03: Because they just told us they're not saying that. [00:21:37] Speaker 02: Well, in their opening merits brief, they did say that the district court's order is so constrictive to essentially preclude the same designations for these seals or designations of them altogether because [00:21:50] Speaker 02: the best available science does not allow for any greater specificity. [00:21:55] Speaker 02: So it would be in the interest of efficiency to just hear these issues now. [00:22:01] Speaker 02: And I think the court can rely on what this court did in the Crow Indian tribe case to hear it now. [00:22:10] Speaker 03: Are you basically arguing that Al-Siyah is just wrong though? [00:22:13] Speaker 03: I mean, it would have been more efficient there too. [00:22:16] Speaker 02: I'm no I don't think so your honor, I mean I think this case does fit within the exceptions and I think a distinction there is that in that case. [00:22:26] Speaker 02: It was still possible that the agency could still less to the the fish by reevaluating its distinct population segment and how it was categorizing the the fish species that issue. [00:22:39] Speaker 02: in that case, which is a science-based question. [00:22:42] Speaker 02: It was not a case that had the same statutory interpretations at issue here. [00:22:48] Speaker 02: And as you, sorry, go ahead, go ahead. [00:22:52] Speaker 02: And as was noted previously, another distinguishing factor, I think, is that in the Alcia case, the agency had developed this four-step action plan that was very detailed in terms of how it was going to comply with the district court's remand and that there would be a public process here. [00:23:07] Speaker 02: We have none of that. [00:23:08] Speaker 04: Does it matter? [00:23:09] Speaker 04: If I recall correctly, and I'll see, the thing that the lower court had found to be problematic was that the decision was in tension with the agency's own rule. [00:23:22] Speaker 04: And part of what I think we were considering on appeal was that the agency could actually revise its own rule that made its decision [00:23:32] Speaker 04: and consistent. [00:23:32] Speaker 04: So everything was in control essentially of the agency and there's maybe a distinction here because what the district court is saying that the agency's actions were in conflict with was the statute. [00:23:44] Speaker 04: So in that sense the agency has no ability to [00:23:48] Speaker 04: revised the statute, it has to comply with the statute, so to the extent that the district court was saying what you did was inconsistent with the statute, there's really nothing the agency can do on remand to remove the inconsistency other than to change its decision. [00:24:02] Speaker 04: Is that a fair distinction? [00:24:04] Speaker 02: That's correct, Your Honor, yes. [00:24:07] Speaker 02: Now, if I could turn briefly to the merits, assuming your honors get there. [00:24:12] Speaker 02: In designating the occupied critical habitat for bearded and ringed seals, the agency did everything the Endangered Species Act requires of it. [00:24:24] Speaker 02: It relied on the best available science to identify the physical and biological features essential to the seal's conservation, and relied on the best available science to identify the specific areas containing these features. [00:24:37] Speaker 02: And it designated these areas after determining they may require special management and considering the economic and other impacts of the designations. [00:24:47] Speaker 02: Nothing more was required. [00:24:49] Speaker 02: And while the designations are no doubt large, that does not render them unlawful. [00:24:54] Speaker 02: Rather, the size of the designations reflect the huge ranges and life history needs of these ice-dependent seals and the dynamic nature of sea ice, as the agency repeatedly explained in its decisions. [00:25:08] Speaker 02: And I'd like to start by discussing the first issue, because that error is one that infected the district court's analysis on the other two issues. [00:25:18] Speaker 02: in our appeal. [00:25:20] Speaker 02: And specifically, in designating occupied critical habitat, the agency properly designated the specific areas that contain the physical and biological features essential to the conservation of the seals. [00:25:34] Speaker 02: The district court's holding that the designations are unlawful because the ESA requires the specific areas designated to be essential misreads the ESA and the relevant case law. [00:25:47] Speaker 03: Essential like the district court was maybe confused by the Center for Biological Diversity Jaguar case because of the long passage about essential can you? [00:25:59] Speaker 02: Give us your read of What that was yes your honor I think if you read that case and the warehouser case on which it relies in context of [00:26:09] Speaker 02: then it becomes clear that both courts were just merely paraphrasing the definition of critical habitat. [00:26:15] Speaker 02: They weren't holding what the district court read those opinions to hold, nor could they have, because that question was not before either of those courts. [00:26:26] Speaker 02: And in the Jaguar case, the portions on which the district court relied were about designating unoccupied, which is irrelevant here. [00:26:35] Speaker 03: It does seem like dicta, but we have this reason to dicta rule in our court. [00:26:39] Speaker 03: tell us why this isn't reasoned dicta or how you're dealing with that role. [00:26:44] Speaker 02: I think it's unreasoned because it is the standard that applies to unoccupied critical [00:26:53] Speaker 02: And here the district court's decision essentially reads out a key phrase from the definition of occupied critical habitat on which are found those physical or biological features. [00:27:08] Speaker 02: And in the context of the plain language of the statute, essential to the conservation of the species modifies physical and biological features. [00:27:17] Speaker 02: not the phrase specific areas such that all the statute requires is that the agency find that the features themselves are essential to the species conservation, which is exactly what the agency did here. [00:27:35] Speaker 05: One question I have is that under the language of the ESA, a critical habitat can't include the entire geographical area. [00:27:46] Speaker 05: But it would seem to me that your interpretation would actually potentially permit that in every case, so long as the agency says, well, there's this widely dispersed essential feature. [00:27:59] Speaker 05: So how would your interpretation not collide with the actual statute? [00:28:06] Speaker 02: Well, the only geographic limit in the statute itself is that the agency not designate the entire range of the species unless the secretary determines that it's appropriate in that particular case. [00:28:19] Speaker 02: And here that's not what happened. [00:28:21] Speaker 02: They did not designate the entire occupied range of [00:28:26] Speaker 02: The species, there's, for example, a 30 million acre exclusion in the northern habitat. [00:28:33] Speaker 02: In the southern habitat, they did not extend the boundaries of the critical habitat as far as the seals occupy those areas because the agency determined those areas don't have the essential sea ice features. [00:28:47] Speaker 02: They moved the shoreward boundary of the critical habitat between the proposed and final rule after a reevaluation of the best of all science to have it be smaller. [00:28:58] Speaker 02: So this is not a situation where the agency ran afoul of the only restriction in the statute itself. [00:29:07] Speaker 02: And this court recognized in the polar bear case that all means all. [00:29:13] Speaker 02: It doesn't mean nearly all. [00:29:16] Speaker 05: I had another question though about these overlapping areas. [00:29:21] Speaker 05: In your view, can you isolate in some respect the net benefits to the critical habitat designation that you think are not provided for already? [00:29:35] Speaker 03: That was my question too. [00:29:37] Speaker 03: Can you speak to the redundancy issue? [00:29:40] Speaker 02: The redundancy in the their argument is that these protections would follow from other areas other things without this without that I see um so the agency found that there would be numerous benefits to the seals from this critical habitat designation specifically from the section 7 consultation process which would require the [00:30:02] Speaker 02: federal agencies to ensure that any action they're taking that might affect these habitat areas to ensure that there wouldn't be any adverse modification or destruction of those habitat areas. [00:30:16] Speaker 02: The agency also pointed to other benefits to the SEALs from these critical habitat designations. [00:30:23] Speaker 03: And as you read these things you're describing, they're not provided by just the [00:30:28] Speaker 03: listing of the species. [00:30:29] Speaker 02: That's correct. [00:30:30] Speaker 02: They're not provided for by any other law. [00:30:34] Speaker 02: It's only the designation of critical habitat that requires agencies to ensure their actions don't adversely modify or distort that critical habitat. [00:30:44] Speaker 02: And the agency's analysis on this point is consistent with other information in the record, such as CBD, SER, [00:30:52] Speaker 02: 031 to 37, which is a study we submitted that finds that species with critical habitat designations are more than twice as likely to be recovering than those without. [00:31:03] Speaker 02: So the designation of this habitat does provide the species with numerous benefits. [00:31:10] Speaker 02: And furthermore, the statute requires that [00:31:13] Speaker 02: the agency designate critical habitat for listed species, irrespective of any other protections that are in place, unless they invoke the rare exception of a not prudency finding, which they did not do here. [00:31:32] Speaker 02: Unless the court has any other questions, I'll reserve the rest of my time for rebuttal. [00:31:36] Speaker 03: Sounds great. [00:31:36] Speaker 03: Thanks. [00:31:36] Speaker 03: Thank you. [00:31:59] Speaker 00: Good morning, Your Honors. [00:32:00] Speaker 00: My name is Norman James. [00:32:02] Speaker 00: I'm here on behalf of the Appalooe and Crossip Hellen State of Alaska. [00:32:08] Speaker 00: Let me start [00:32:11] Speaker 00: Well, let me start. [00:32:12] Speaker 00: We don't want to wade into the All-Sea Valley thicket. [00:32:15] Speaker 00: We don't have to. [00:32:16] Speaker 05: For good reason. [00:32:19] Speaker 00: I mean, we view it as a double-edged sword. [00:32:23] Speaker 00: We did make an agreement, as counsel for the agency said, that if the main appeal is dismissed, we dismiss her cross-appeal. [00:32:33] Speaker 00: That's her position. [00:32:35] Speaker 00: I also wanted to address, though, a related issue, because it actually does segue into the first issue that's been raised here about the failure to properly explain why these enormous critical habitat designations are necessary. [00:32:52] Speaker 00: Because it does tie into the questions that you were asking earlier about Alsea Valley. [00:32:57] Speaker 00: Reading from the lower court's decision, this is on page star nine, quote, [00:33:05] Speaker 00: Nass Marine Fisheries Service, NIMS, made these designations, however, without explaining why the entirety of each designated area is necessary to the seal's survival and recovery or why a smaller area would be inadequate for their conservation, especially since a significant portion of the bearded seal's habitat and most of the ring seal's habitat are outside the United States territory, which is addressed further below. [00:33:35] Speaker 00: The judge then added a footnote, footnote 101, which I think is relevant to what we're discussing today. [00:33:44] Speaker 00: Let me find it. [00:33:46] Speaker 00: At the end of that footnote, the judge said the final sentence, while the court agrees that the designated critical habitats are rather large, the court is not persuaded that an area cannot be essential to the conservation of a species simply because it's large. [00:34:03] Speaker 00: We don't think that Judge Gleason was trying to create new requirements and impose them on the agency. [00:34:16] Speaker 00: We think, and there are other places where the judge made similar statements, we think what the judge said was that these are unusually large. [00:34:26] Speaker 00: That doesn't mean that they're per se invalid, but you have to provide a credible explanation for why you're designating such an enormous area. [00:34:35] Speaker 00: Again, at the conclusion of her discussion of this issue, she says, because NIMS failed to consider any foreign nation efforts to conserve the seals, and because it failed to articulate a satisfactory explanation for why the entirety of the designated areas in the US territory are indispensable to the seal's survival and recovery, the court finds the service's critical habitat designations for the bearded seal and the ringed seal to be arbitrary and capricious. [00:35:04] Speaker 00: So we don't read it as precluding the same area from being designated, or for that matter, even a larger area. [00:35:13] Speaker 00: But the agency has to provide an explanation for why this is critical habitat. [00:35:20] Speaker 00: And that segues, again, into the first issue. [00:35:22] Speaker 00: The first, if you look at critical habitat, you look at the Wehrhauser decision, you look at CBD versus the Fish and Wildlife Service decision, which I call the Rosemont case. [00:35:35] Speaker 00: I was actually involved in that case. [00:35:38] Speaker 00: Those cases dealt generally with what critical habitat is. [00:35:43] Speaker 00: And in Wehrhauser and again in the CBD case, [00:35:47] Speaker 00: The court reinforced the fact that critical habitat, the term critical, means something. [00:35:52] Speaker 00: It's critical. [00:35:53] Speaker 00: It's essential to the conservation of the species. [00:35:56] Speaker 00: There's a hierarchy in the statute. [00:35:58] Speaker 00: There's a two-part test, if you will. [00:36:00] Speaker 00: There's occupied and there's unoccupied. [00:36:03] Speaker 00: And for many decades, beginning in 1980, when the first regulations were promulgated by the Fish and Wildlife Service and by NIMS implementing the requirements to designate critical habitat, [00:36:17] Speaker 00: There is always a requirement that the agency has to show that the designation of the occupied habitat would be insufficient to conserve the species before you could designate unoccupied habitat. [00:36:30] Speaker 00: That's the, quote, onerous requirement that we've been throwing around. [00:36:34] Speaker 00: It's a hierarchy. [00:36:36] Speaker 00: But it doesn't change the fact that, as we've discussed in our brief, it's critical habitat. [00:36:43] Speaker 03: I guess I'm confused under your reading how you aren't collapsing occupied and unoccupied. [00:36:48] Speaker 03: What is the difference between the two if you read occupied to have this additional requirement? [00:36:52] Speaker 00: Well, in either case, okay, in either case, you still have to show that the agency still has to show that there's conservation value. [00:37:03] Speaker 00: to the areas you're designating. [00:37:05] Speaker 00: The arguments being made on the other side. [00:37:07] Speaker 03: But that's conservation value. [00:37:09] Speaker 03: Well, I guess it depends what you mean by those words. [00:37:12] Speaker 03: But this idea that it has to be absolutely essential is not in the statute, as I read it, as for occupied territory. [00:37:18] Speaker 03: But it seems like you want to add it in. [00:37:20] Speaker 03: And at that point, it seems like it becomes the same as the unoccupied territory. [00:37:23] Speaker 00: But if you do that, Your Honor, you're on the road to getting absurd results. [00:37:28] Speaker 00: And let me give you a couple of examples that highlight this. [00:37:31] Speaker 00: In fact, in this case, [00:37:33] Speaker 00: There were 30 million acres that were excluded from the critical habitat for the ring seal because the Navy conducts training exercises in that part of the Arctic Ocean. [00:37:45] Speaker 00: And remember, when you exclude something under Section 4B2 of the ESA, these are areas that qualify as critical habitat. [00:37:55] Speaker 00: They meet the test. [00:37:56] Speaker 00: But you exclude them because of conflicts with economic resource uses, or in this case, national defense. [00:38:04] Speaker 00: In this case, in excluding 30 million, and that's an enormous area. [00:38:09] Speaker 00: That's the size of Pennsylvania. [00:38:11] Speaker 00: So this is not a minor adjustment. [00:38:14] Speaker 00: The agency said, quote, although the area requested for exclusion contains one or more of the essential features, [00:38:25] Speaker 00: So it's automatically critical habitat of the Arctic ring seals critical habitat. [00:38:30] Speaker 00: Data are limited at this time to inform our assessment of the relative value of this area to the conservation of the species. [00:38:37] Speaker 00: So, in other words, you're simply designating the areas because a feature is there, but we don't know whether it's actually going to be helpful to conserve the species. [00:38:45] Speaker 03: And that's the whole point of... I really don't understand your answer to my question at all. [00:38:49] Speaker 03: What do you think is the difference between designated occupied territory and designating unoccupied once you add what you want to to occupied? [00:39:00] Speaker 00: I think there's a higher standard because [00:39:03] Speaker 00: You start, again, as the hierarchy in the statute, you start with areas that are occupied and designate those first. [00:39:10] Speaker 00: Then if those aren't sufficient to conserve the species, you move on and you can designate unoccupied areas. [00:39:17] Speaker 00: It's a two-part hierarchy. [00:39:20] Speaker 05: So I want to go back to your foreign [00:39:23] Speaker 05: But before I get to that, I want to ask about the exclusions. [00:39:27] Speaker 05: And it seems to me that the call that the service made was this low marginal benefit of designation that outweighed the low cost, or low marginal cost. [00:39:42] Speaker 05: And Alaska doesn't seem to be challenging that, correct? [00:39:49] Speaker 05: Well, and the result was, if you're not really challenging it, where is it that the agency's determination is arbitrary and capricious on these exclusions? [00:40:02] Speaker 00: Well, I think what the district court found was correct, that the agency determined that critical habitat provides virile benefit, because by virtue of the species listing and under the Marine Malam Protection Act, the species habitat is already being protected. [00:40:19] Speaker 00: So it doesn't add any real conservation value, any conservation benefit to designate critical habitat. [00:40:25] Speaker 00: Our argument, and what the judge found below, was that given that the state had requested and North Slope Borough had requested that areas be excluded, given that the agency found there would be very little benefit to designating critical habitat, it was arbitrary and [00:40:43] Speaker 00: capricious not to go ahead and at least consider those exclusions. [00:40:49] Speaker 00: And if you're not going to exclude any areas on the basis of economic impacts, at least give it a fair shake and explain why you're not doing it. [00:40:58] Speaker 05: Is your argument a procedural one of a lack of explanation, or is it a substantive one of what the agency was required to do? [00:41:06] Speaker 00: I apologize. [00:41:07] Speaker 00: It really is more procedural, that they just stopped and said, well, we exercise our discretion not to consider it. [00:41:14] Speaker 00: When, again, cases like Bennett v. Spear and Warehouser tell the service they have to go through the process, they have discretion like any agency as to their ultimate decision, and that's reviewable under the Administrative Procedure Act, but they at least have to go through the process and explain their decision. [00:41:32] Speaker 00: They didn't do that. [00:41:33] Speaker 00: They claimed they had discretion to just stop. [00:41:36] Speaker 03: But I guess I'm confused about this because I mean CBD was just arguing that the agency did find benefits and I even kind of thought it points in your review seemed to acknowledge that they had said that. [00:41:48] Speaker 03: So what is like there's the increased education benefit and awareness of the protected habitat. [00:41:54] Speaker 03: Why aren't those benefits that the agency identified additional benefits? [00:41:58] Speaker 00: Because, again, if you look at the language in the rule of your honor, it's all speculation. [00:42:05] Speaker 00: It's this may happen, this might happen. [00:42:07] Speaker 00: I could go through and show you. [00:42:08] Speaker 00: They're all, for lack of a better way to put it, sort of the weasel words that you use when, well, this could happen. [00:42:16] Speaker 00: This might help the polar bear. [00:42:17] Speaker 04: Is that an issue there with the best available science? [00:42:19] Speaker 04: I mean, a lot of these cases turn on the best agencies allowed to rely on the best available science and sometimes the best available science hedges, right? [00:42:29] Speaker 04: scientists can't know things with absolute certainty. [00:42:33] Speaker 04: So when there's limits to what scientists know, but the agency has to rely on the best available science, it seems to some extent, I think CBD's position is the expectation of greater certainty and more justification is just impossible given the limits of science. [00:42:56] Speaker 00: The Supreme Court in Benton v. Spear has said that that term, using the best available science, doesn't allow the agency to speculate. [00:43:04] Speaker 00: And that's what they're doing. [00:43:05] Speaker 00: They're not allowed to speculate. [00:43:07] Speaker 00: You use the best available, and the economic analysis, Your Honor, that we're talking about here is not scientific. [00:43:14] Speaker 00: There's a big report and it's frankly a lot of fluff. [00:43:18] Speaker 03: But the agency itself has expertise. [00:43:20] Speaker 03: I guess I'm confused because I thought your initial argument was [00:43:24] Speaker 03: They just didn't talk about this at all or give an explanation at all. [00:43:27] Speaker 03: But now you're saying they gave an explanation. [00:43:29] Speaker 03: It was just too speculative. [00:43:30] Speaker 00: Well, that was in response to your question about the benefits. [00:43:35] Speaker 00: The primary benefit, and the service even says that over and over in the rule, the primary benefit of designating critical habitat is that area then becomes subject to the adverse modification standard under Section 7. [00:43:49] Speaker 00: There are these other ancillary benefits that sort of get tossed up there. [00:43:53] Speaker 00: But the service itself admitted in the rule that that's the primary benefit of designating critical habitat. [00:43:58] Speaker 00: And we agree. [00:43:59] Speaker 00: We agree with that. [00:44:00] Speaker 00: What we don't agree with are sort of larding up the record, if you will, with these other speculative benefits that, again, they're benefits that have nothing to do with designating critical habitat. [00:44:13] Speaker 00: The purpose of designating critical habitat, again, the touchstone. [00:44:16] Speaker 00: You're conserving the species. [00:44:17] Speaker 00: Does it conserve the species? [00:44:19] Speaker 00: If it doesn't provide a conservation benefit into our cross-claim argument, it's not prudent to designate it. [00:44:27] Speaker 00: There's no reason to designate it. [00:44:29] Speaker 00: And that's the case we have here. [00:44:31] Speaker 00: When the agency is saying there are marginal benefits from designating critical habitat, but we're not going to exclude any areas, it's inconsistent. [00:44:41] Speaker 00: It's arbitrary. [00:44:43] Speaker 00: And then to ignore the fact that there is a prudency requirement. [00:44:46] Speaker 03: There's this confusing aspect of your argument that's saying, [00:44:49] Speaker 03: what they did is just redundant, so it makes no difference, but yet you're here upset about it. [00:44:55] Speaker 03: So if it's just redundant because everything it requires is already required by something else, why do you care? [00:45:01] Speaker 00: Well, we care because frankly, we think that what they're saying is wrong and it's disingenuous. [00:45:09] Speaker 03: But who cares if it doesn't cause any effect? [00:45:12] Speaker 00: Well, if the agency is doing what it says it's doing, if it's protecting species habitat through consulting under the jeopardy standard, it's [00:45:23] Speaker 00: it's not acting consistent with the ESA, and that's what it's saying it's doing. [00:45:28] Speaker 00: That's not an issue here. [00:45:29] Speaker 00: I understand your point. [00:45:30] Speaker 00: Why are you upset if they're saying it doesn't have any effect? [00:45:33] Speaker 00: The reality is it does have an effect. [00:45:35] Speaker 03: Okay, so then it's not redundant. [00:45:36] Speaker 03: I don't really understand. [00:45:39] Speaker 00: But Your Honor, they're saying it's redundant. [00:45:41] Speaker 00: I mean, do we have, they say it's redundant. [00:45:43] Speaker 03: Well, if it's redundant, then why do you have standing to challenge this issue? [00:45:47] Speaker 03: I just don't understand how you can both say you care that there's a problem and the problem is there's nothing happening. [00:45:54] Speaker 00: Well, there is something happening because they're misapplying Section 4B2. [00:46:00] Speaker 00: They're marginalizing the impact of critical habitat. [00:46:04] Speaker 00: And by doing that, they're avoiding having to take a hard look at whether they should exclude areas from critical habitat. [00:46:10] Speaker 00: I've seen this happen over and over again. [00:46:12] Speaker 04: What is the harm, though, if it makes no practical difference in the world? [00:46:17] Speaker 04: What is the harm from that? [00:46:18] Speaker 00: It does make a difference, Your Honor. [00:46:21] Speaker 04: And specifically to the state of Alaska, how? [00:46:24] Speaker 04: If you are saying the benefits are speculative and redundant. [00:46:29] Speaker 00: Again, we are not saying this. [00:46:31] Speaker 00: This is the agency itself saying it. [00:46:33] Speaker 00: They also say, they also identify why are we listing critical habitat? [00:46:38] Speaker 00: What are we trying to protect? [00:46:39] Speaker 00: What are the threats? [00:46:40] Speaker 00: The threats are commercial activities along the North Slope. [00:46:44] Speaker 00: It's oil and gas development. [00:46:46] Speaker 00: It's commercial transportation. [00:46:49] Speaker 00: That's why Alaska, we've submitted our comments, that's why Alaska asked to exclude areas from the critical habitat. [00:46:55] Speaker 00: That's why North Slope Borough did as well. [00:46:58] Speaker 00: So it does have an impact, we think, but the agency is playing it both ways. [00:47:03] Speaker 00: They're saying, well, this really doesn't [00:47:05] Speaker 00: This does nothing and has no impact. [00:47:08] Speaker 00: But if that's true, then it's not prudent to designate it. [00:47:11] Speaker 00: Why bother? [00:47:13] Speaker 00: So they're playing it both ways. [00:47:15] Speaker 04: Well, the agency does say that the designation benefits [00:47:22] Speaker 00: They really don't. [00:47:25] Speaker 00: What they do is they throw a laundry list of speculative things that have nothing to do with the meat of critical habitat, which does it provide a conservation benefit to the species? [00:47:41] Speaker 00: They say it doesn't because it's already being protected. [00:47:44] Speaker 00: But then they won't exclude any areas. [00:47:47] Speaker 00: If it really doesn't matter to the agency, why not exclude the areas that Alaska and North Slope Borough asked for? [00:47:55] Speaker 00: Why not just go ahead and say, yeah, this is not really doing anything at all? [00:48:00] Speaker 00: And again, to loop back to where I started, if you look at the exclusion for the Navy, [00:48:09] Speaker 00: where you say, well, we're going to exclude this area because we really don't have any information about what the conservation value is. [00:48:17] Speaker 00: Well, if you don't know what the conservation value is, why are you designating this critical habitat? [00:48:23] Speaker 00: What other areas in the 160 million acres, likewise, you don't have information on the conservation value. [00:48:33] Speaker 00: That's the problem. [00:48:34] Speaker 00: That's what Judge Gleason was getting at with her order. [00:48:38] Speaker 00: You designate an enormous area. [00:48:40] Speaker 00: You ignore the fact that there's large populations and significant habitat in other countries. [00:48:49] Speaker 00: And then turn around and say, well, there's no real, this really doesn't provide any benefit. [00:48:53] Speaker 00: But we're not going to exclude any areas either. [00:48:56] Speaker 05: Let me then turn back to my question about the impact of foreign conservation. [00:49:02] Speaker 05: So one, I'd like to know generally your view as to whether it's appropriate to consider foreign conservation efforts. [00:49:10] Speaker 05: And then secondarily to that, whether in fact, by determining that a species is threatened, that the foreign impact wouldn't already be subsumed in that determination. [00:49:26] Speaker 00: That's a good question. [00:49:28] Speaker 00: This is frankly a straw man, a red herring. [00:49:32] Speaker 00: What we argued was this, critical habitat has to be, again, essential to the conservation of the species. [00:49:42] Speaker 00: That's the touchstone. [00:49:44] Speaker 00: Now, by rule, you can't designate critical habitat in a foreign country. [00:49:48] Speaker 00: It's limited to areas within the US jurisdiction. [00:49:52] Speaker 00: But you can have a situation where there's so much habitat, large populations in a foreign country, [00:50:00] Speaker 00: that there really isn't any need to be designating critical habitat. [00:50:04] Speaker 00: In other words, to make that analysis of whether the habitat's essential to the conservation of the species, you have to consider, you can't designate it there, but you have to at least consider it. [00:50:15] Speaker 00: It's part of the overall calculus. [00:50:18] Speaker 00: And unfortunately, Judge Gleason in a couple places used the language, Your Honor, that you referred to about the requirement when you list. [00:50:26] Speaker 00: But there are other requirements in the ESA. [00:50:29] Speaker 00: For example, there's a requirement in the ESA itself, Section 4B5B, that requires that when the agency is proposing to designate critical habitat and the species is found in a foreign country, you have to give notice of that to the foreign country. [00:50:48] Speaker 00: There's also a regulation that the agencies have adopted. [00:50:52] Speaker 00: It's at 50 CFR 424.13 that requires that the agency consult with the foreign country when they're considering listing or designating critical habitat. [00:51:05] Speaker 00: Again, not in the foreign country, but if that foreign country contains the species or their citizens hunt the species on the high seas, they have to confer with them. [00:51:18] Speaker 00: It's unfortunate that Judge Gleason used the language she did. [00:51:21] Speaker 00: Our point was really that... I'm trying to get what your point is. [00:51:25] Speaker 00: Thank you. [00:51:25] Speaker 00: I'm sorry. [00:51:26] Speaker 00: But the point is that that's part of the calculus. [00:51:29] Speaker 00: That's part of what you have to consider to know whether the critical habitat is essential to the conservation of the species. [00:51:36] Speaker 00: Let me give you one other, I'm getting low on time. [00:51:39] Speaker 00: One quick example, let me use the Jaguar example, because that's, take the facts right out of the CBD versus Fish and Wildlife Service case. [00:51:46] Speaker 00: The Jaguar, for example, has an enormous range. [00:51:49] Speaker 00: It extends from Northern Argentina, through Brazil, through Central America, through Mexico. [00:51:56] Speaker 00: It's well over a billion acres. [00:51:59] Speaker 00: It's enormous. [00:52:00] Speaker 00: And there are large populations in many of these countries. [00:52:04] Speaker 00: So when you designate critical habitat in southern Arizona, is that critical habitat essential, indispensable to the conservation of the species? [00:52:14] Speaker 00: No, it's not. [00:52:16] Speaker 00: Because regardless of what happens to the features that you're targeting in that critical habitat, you've got a large population and an enormous amount of habitat next door in Central and South America. [00:52:32] Speaker 00: If the Jaguar is going to recover, that's where the conservation efforts have to take place. [00:52:37] Speaker 00: Preserving habitat and then restricting uses as a result to protect that habitat, you're not accomplishing anything. [00:52:43] Speaker 00: There's no real conservation benefit. [00:52:46] Speaker 00: And that's why you have to consider what's going on in foreign countries. [00:52:52] Speaker 03: OK, we have you over your time. [00:52:53] Speaker 03: Thank you for your argument. [00:52:54] Speaker 00: Thank you. [00:52:54] Speaker 03: I'm sorry. [00:52:54] Speaker 03: Let's turn to rebuttal, please. [00:53:09] Speaker 02: Thank you, Your Honors. [00:53:10] Speaker 02: Just a couple of brief points on rebuttal. [00:53:13] Speaker 02: First, on the foreign conservation efforts issue, the plain language of the Endangered Species Act simply does not require the agency to consider foreign conservation efforts in designating critical habitat. [00:53:25] Speaker 02: In contrast, it specifies that that is a requirement when listing the species, indicating that that disparate treatment [00:53:33] Speaker 02: is intentional. [00:53:35] Speaker 02: And the district court's holding on this issue was inextricably intertwined with its unreasonable determination on the first issue that the agency has to explain why the areas themselves are essential for the conservation of the species, which is the standard for unoccupied habitat. [00:53:59] Speaker 02: occupied habitat at issue here. [00:54:01] Speaker 02: And on the exclusion issue, this report was wrong on this issue as well. [00:54:09] Speaker 02: The agency did everything that the Endangered Species Act required of it. [00:54:15] Speaker 02: And Alaska really points to nothing that the agency failed to consider. [00:54:19] Speaker 02: It just doesn't like its analysis and ultimate decision. [00:54:23] Speaker 02: But that is not a reason to overturn the agency's decision, particularly where [00:54:27] Speaker 02: It did an extensive analysis of the economic costs and the benefit of the designations in over 100 pages on each designation. [00:54:38] Speaker 02: And again, the district court's holding on this point was also intertwined with its erroneous finding on the first issue in the center's appeal. [00:54:54] Speaker 02: And unless the court has any other questions, I would ask that this court find that it has jurisdiction to hear this appeal overturn the district court on the three issues at issue in the center's appeal and affirm it on the issue in the cross appeal. [00:55:11] Speaker 03: Thank you. [00:55:11] Speaker 03: Thank you both sides for the helpful arguments. [00:55:14] Speaker 03: This case is submitted.