[00:00:00] Speaker 01: Friends of Animals versus Fish and Wildlife Service, 254021. [00:00:03] Speaker 01: Good morning, Your Honors. [00:00:11] Speaker 04: May it please the Court. [00:00:12] Speaker 04: My name is Andrea Mercutio, and I represent Appellant Friends of Animals. [00:00:15] Speaker 04: I'd like to reserve two minutes for rebuttal. [00:00:18] Speaker 04: This case is about a conservation plan that conserves almost nothing. [00:00:22] Speaker 04: And it prioritizes development at the expense of a species threatened with extinction. [00:00:28] Speaker 04: The U.S. [00:00:28] Speaker 04: Fish and Wildlife Service issued master incidental take permits based on a general conservation plan that lets the counties approve future development that will permanently destroy habitat across Utah prairie dogs' entire range and take over 7,000 individuals. [00:00:46] Speaker 04: all without identifying a single colony or an acre of habitat that it plans to protect. [00:00:52] Speaker 04: Today, I'll focus on two critical ways that decision violates the Engendered Species Act. [00:00:58] Speaker 04: First, it was irrational for FWS to conclude that the harm would be fully offset without [00:01:07] Speaker 04: assessing the biological value of what will be lost versus gained and instead relied on so-called mitigation that kills more than 90% of the animals involved. [00:01:17] Speaker 04: And second, it failed to require known practical mitigation that would reduce take. [00:01:23] Speaker 04: And if I have time, I'll also address how the record directly contradicts the no jeopardy finding and the funding finding. [00:01:30] Speaker 04: For these reasons, we respectfully ask the court to vacate FWS's arbitrary decision. [00:01:37] Speaker 04: So moving to the first issue, the Native Species Act requires that the counties minimize and mitigate the impacts to the maximum extent practical. [00:01:48] Speaker 01: But that's only if the take is not fully offset by mitigation measures, right? [00:01:58] Speaker 01: Yes. [00:01:58] Speaker 01: Under the handbook. [00:01:59] Speaker 04: Yes, Your Honor. [00:02:00] Speaker 04: So based on the handbook, there's two ways that they can do that. [00:02:04] Speaker 04: Either find that it's fully offset, or they could find that [00:02:07] Speaker 04: no more practical mitigation would reduce take. [00:02:11] Speaker 04: So here, FWS claims it met that requirement by finding that the impacts are fully offset. [00:02:17] Speaker 04: So if the court rejects that finding, then it violated the ESA. [00:02:22] Speaker 04: And there are two major problems with that finding. [00:02:24] Speaker 04: And its first is that they couldn't reasonably conclude the impacts would be fully offset without looking at the biological value of what would be lost and what would replace it. [00:02:33] Speaker 04: The recovery plan repeatedly emphasizes that Utah prairie dogs can only survive and recover if FWS identifies and protects valuable habitat that keeps colonies connected, especially on non-federal land. [00:02:48] Speaker 04: It explicitly directs conservation plans to do that. [00:02:51] Speaker 04: And FWS's handbook confirms this by defining fully offset to mean that the biological value lost [00:02:59] Speaker 04: must be fully replaced by conservation measures with equal biological value. [00:03:03] Speaker 01: One thing I didn't understand from the materials, let's say I'm in Iron County and I want to open up the Bob Baccarat condominiums on a major development area. [00:03:17] Speaker 01: And so Iron County has this now, this master permit. [00:03:21] Speaker 01: And so I send an application, I send a biological map, I say exactly what I want to do. [00:03:29] Speaker 01: Now, does Iron County then determine whether or not there are adequate mitigation measures to fully offset the permanent destruction of habitat that's going to happen through the bowback wreck condominiums? [00:03:49] Speaker 04: Your Honor, so under these type of master permits, there is [00:03:55] Speaker 04: For in major development area, no habitat quality assessment is needed before TAKE occurs. [00:04:02] Speaker 04: And in minor development areas, they do require a habitat quality assessment, but that's only used to rate the habitat, and it's just kind of to track the mitigation success of the GCP. [00:04:13] Speaker 01: But then why are the applicants for these developments submitting these applications for a certificate of inclusion, or if there's not a master permit for an incidental type permit, [00:04:26] Speaker 01: You know, with all of this information about the biological habitat that's going to be destroyed, now they say, well, I think what they imply is that it's going to take place later. [00:04:39] Speaker 01: The comparison between the biological habitat that's permanently destroyed versus the habitat that's going to be available on federal lands, for example, through a trans relocation and the like. [00:04:51] Speaker 01: So are you saying that [00:04:53] Speaker 01: despite the fact that an applicant for a certificate of inclusion or for an ITP submits this material that nobody ever actually looks at it. [00:05:02] Speaker 01: They give you a certificate of inclusion and then worry about what they're going to do later? [00:05:06] Speaker 04: Yes, Your Honor. [00:05:08] Speaker 04: For major development areas, there is no habitat quality assessment done. [00:05:14] Speaker 04: They might say where the location is, but there's no assessment of the biological value of the colonies and habitat in that area. [00:05:23] Speaker 04: described on 3JA211 and 220. [00:05:27] Speaker 04: And so the counties won't ever know what that quality is that's being lost. [00:05:34] Speaker 04: And they do require them for minor development areas, but again, the UWR [00:05:43] Speaker 04: looks at these assessments, not Fish and Wildlife Service, and they just report it to Fish and Wildlife Service. [00:05:49] Speaker 04: It says that it is only to track mitigation and not to change any mitigation here. [00:05:56] Speaker 04: So under this plan, the mitigation is already set by the GCP. [00:06:01] Speaker 04: There's no more additional mitigation that would be changed in the future. [00:06:05] Speaker 04: It's just the kind of structure of this is that [00:06:13] Speaker 04: The mitigation is already fully offset now. [00:06:16] Speaker 04: And all that the developers have to do is basically just apply for this certificate of service. [00:06:23] Speaker 04: They just have to say that they're going to comply with the GCP, which is just to translocate if feasible. [00:06:29] Speaker 04: And they pay their fees. [00:06:31] Speaker 04: There's not any more habitat quality analysis done. [00:06:35] Speaker 02: Council, can I pick up on a word you just used, which is the structure of all of this? [00:06:40] Speaker 02: You're not challenging, as I read it, individual permit request decisions that are made by the master permit holders. [00:06:47] Speaker 02: You're challenging the general conservation plan, which Fish and Wildlife said is more a landscape level. [00:06:52] Speaker 02: And as I read the district court's order, it kind of took you to task to say, well, you're not understanding that this is at a landscape level, the conservation plan. [00:07:02] Speaker 02: And so all this information that may be deemed deficient, of course, they wouldn't know that when they [00:07:08] Speaker 02: authored this plan, because it has to be decided later. [00:07:11] Speaker 02: And so I just find myself struggling to understand how that makes a difference to our analysis here, when as I read the requirements of the statute, it doesn't really contemplate as I read it a difference between these general conservation plans and the habitat conservation plans. [00:07:30] Speaker 02: Yet in your reply brief, you said, well, we have no issue with them doing it this way. [00:07:35] Speaker 04: Your Honor, so we aren't [00:07:38] Speaker 04: challenging the programmatic structure of the general conservation plans. [00:07:42] Speaker 04: But this GCP was FWS's one and only chance to assess the biological value and the impacts and implement more mitigation before these colonies are permanently destroyed. [00:07:55] Speaker 04: Under the ESA, anyone applying for an incidental to take permit must submit a conservation plan, and FWS has to make these findings about it. [00:08:04] Speaker 04: Under these master permits, like this, [00:08:07] Speaker 04: General Conservation Plan is the conservation plan for that. [00:08:11] Speaker 04: The permits could not have been approved without it. [00:08:15] Speaker 04: And FWS will not review or approve any future development. [00:08:20] Speaker 04: There is some reports after the fact, but that is after HABT has already been taken. [00:08:26] Speaker 04: just say that they treat all allowed to take under these certificates as already fully mitigated and already addressed by the original GCP, the original NEPA analysis, and the no jeopardy finding. [00:08:38] Speaker 04: There is not further review, and I do believe that that is where the district court misread those facts. [00:08:47] Speaker 03: So there's never a biological review. [00:08:50] Speaker 03: Is that what you're saying? [00:08:51] Speaker 04: Not by the Fish and Wildlife Service, no. [00:08:54] Speaker 03: And you're saying that by the terms of their own handbook, that's required? [00:09:01] Speaker 03: Yes, Your Honor. [00:09:03] Speaker 03: Pre-permit? [00:09:04] Speaker 03: I mean, you say you're not challenging the structural or the programmatic aspect of this, but it seems like you are, in the sense that you suggest that this needs to be before the issuance of the permit. [00:09:17] Speaker 04: But, Your Honor, [00:09:18] Speaker 04: Permits are already issued. [00:09:20] Speaker 04: These master permits are incidental tag permits under the Endangered Species Act. [00:09:26] Speaker 03: Right. [00:09:27] Speaker 03: And you're not challenging the fact that those master permits are issued. [00:09:32] Speaker 03: You're not challenging the structure of that. [00:09:35] Speaker 03: Your Honor, we are. [00:09:35] Speaker 00: It seems like you are. [00:09:36] Speaker 03: And that's why I kind of thought maybe Judge Federico was going there, too. [00:09:40] Speaker 03: That's my struggle as I was reading the briefs is you insist that you're not challenging it, but then you seem to be challenging it. [00:09:47] Speaker 04: Your Honor, we are challenging the master permits. [00:09:50] Speaker 04: We are not challenging future certificates of inclusion that the counties will eventually approve. [00:09:57] Speaker 02: So your position, as I just I think heard you articulate it, is that Fish and Wildlife Service has to make these determinations about whether or not these master permits, as they are being given out to counties, comply with the requirements of their plan and therefore the statute. [00:10:16] Speaker 02: But again, I think the district court says, well, how could they at that point in time because they don't even know what the projects are, where they're located, and what the potential take and mitigation would be. [00:10:26] Speaker 04: Well, Your Honor, there's ways to mitigate the impacts to the maximum extent practical without knowing the location. [00:10:33] Speaker 04: That is why biologically based mitigation was required here. [00:10:38] Speaker 04: The recovery plan directs them to protect valuable habitat, and they could have mapped out all the habitat and said, no development in this area. [00:10:45] Speaker 04: And then they would know that the biological value of what's being taken isn't high quality and important for recovery and survival. [00:10:53] Speaker 04: And consistent with its own handbook, it could have said that [00:10:56] Speaker 04: It could have required that lost high or medium quality habitat be replaced with either more or better quality habitat. [00:11:04] Speaker 04: It chose not to. [00:11:05] Speaker 04: It instead just labeled the areas as major and minor development areas and used this mitigation ratio [00:11:12] Speaker 04: conserving one acre of habitat for one loss, but that tells you nothing about the biological value of that habitat. [00:11:20] Speaker 04: And its handbook has many examples where they will say, if this quality of habitat is lost, it must be replaced with this quality of habitat. [00:11:30] Speaker 04: And none of that happens here. [00:11:31] Speaker 04: There were just so many ways that they could have protected valuable habitat and still comply with the statute. [00:11:41] Speaker 04: But they did not do that here. [00:11:43] Speaker 03: And complied with the programmatic structure that they've set up here? [00:11:47] Speaker 03: Yes, Your Honor. [00:11:48] Speaker 03: OK. [00:11:50] Speaker 04: And they would have done that pre-permit? [00:11:55] Speaker 04: Yes. [00:11:56] Speaker 04: And that would be by implementing this mitigation that does consider these biological values of colonies and habitat, like exactly what his recovery plan tells it to do. [00:12:10] Speaker 04: Instead, they just relied on these translocations that are overwhelmingly unsuccessful. [00:12:18] Speaker 04: FWS itself said 90% of prey dogs will die within a year, and two-thirds of sites will completely fail. [00:12:27] Speaker 04: That means that the mitigation itself results in take, so there's no way that these impacts could have been fully offset. [00:12:36] Speaker 04: Its own handbook says that translocation should be used sparingly and only with further research. [00:12:41] Speaker 04: And the record confirms that the new colonies that will be created through these won't fully offset the lost because the GCP dream deems translocation sites successful even if all prairie dogs die. [00:12:54] Speaker 04: on two-thirds of the sites, and the remaining one-third have a spring count of just one prairie dog. [00:12:59] Speaker 04: But the science shows that to maintain viable colonies, the colonies need to remain connected and have a spring count of at least 20 prairie dogs. [00:13:10] Speaker 04: Otherwise, they contribute little to the species' long-term persistence. [00:13:14] Speaker 02: And I see... Council, can I ask you one quick question on remedy? [00:13:18] Speaker 02: You're arguing for us to vacate the plan, but if we found that there was, you know, maybe problems with the plan, why would we not remand for a vacature decision by the district court? [00:13:29] Speaker 04: Your Honor, the court should vacate and remand the GCP and permits because this is the presumptive remedy under for violation of the APA and there's no reason to depart from that rule here. [00:13:41] Speaker 04: These are seriously serious and not easily fixed issues and [00:13:48] Speaker 04: If there are any questions on remedy, we would request some further briefing on that. [00:13:57] Speaker 04: And I see that I am cutting in my rebuttal time, so. [00:14:02] Speaker 01: Robert, why don't you stop the clock? [00:14:10] Speaker 01: Thank you. [00:14:10] Speaker 05: Thank you. [00:14:14] Speaker 05: Good morning, Your Honors. [00:14:15] Speaker 05: Annie Collier on behalf of the US Fish and Wildlife Service. [00:14:19] Speaker 05: I'd like to start by addressing a little bit of misconception, I think, between the mitigation with the major development and what the agency is considering there and the mitigation for the minor development areas. [00:14:30] Speaker 05: So Fish and Wildlife first looked at the entire mapped habitat across this entire range. [00:14:37] Speaker 05: And you can look at those maps. [00:14:38] Speaker 05: I don't have the site in front of me. [00:14:42] Speaker 05: But I think it's 3JA 121, 122. [00:14:46] Speaker 05: Looked at the maps. [00:14:47] Speaker 05: looked at the areas where there is already development or areas adjacent to developed areas, that Fish and Wildlife determined there might be prairie dogs, but those prairie dogs aren't important to the long-term survival of the species in those locations where they are now. [00:15:03] Speaker 01: Right. [00:15:03] Speaker 01: Because, I think you say it on 59, because these are built out areas or adjacent to areas that are to be built out, which sounds like [00:15:14] Speaker 01: the prototypical definition of a circular argument? [00:15:17] Speaker 05: Well, I see that there's planned development there. [00:15:21] Speaker 05: But it's also areas that are already developed, that the habitat is fragmented, that there isn't that connectivity that you might find in the minor development areas or the less developed areas. [00:15:30] Speaker 05: So you have these sort of isolated prairie dog populations. [00:15:34] Speaker 01: Right. [00:15:34] Speaker 01: But at least as far as the areas that are not yet built out, that argument is circular. [00:15:44] Speaker 01: For the areas that are major development areas that are not already built out in the condominiums or into an existing development, [00:15:56] Speaker 01: Your argument is circular, right? [00:15:58] Speaker 05: Well, no, I don't think so, Your Honor, because I think in the places where they're adjacent, and you can look at the maps, you can look at where they designated these major development areas, those places, if there are colonies there, they are isolated from the greater metapopulation as it stands. [00:16:13] Speaker 01: But you also are saying in the GCP that the major development areas are the ideal site for the colonies because [00:16:24] Speaker 01: The federal lands are arid, and these major development, if you want me to find it, I will. [00:16:31] Speaker 01: But the major development areas are areas with prime vegetation. [00:16:35] Speaker 01: They have lots of moisture sources. [00:16:38] Speaker 01: And so explain to me how it's not circular to say, because we're going to build, because we're going to give these faster permits and these ITPs, [00:16:50] Speaker 01: How is that not certified? [00:16:52] Speaker 05: So I think the distinction there is it's not the major development areas that have the good habitat. [00:16:56] Speaker 05: It's the minor development areas, private land, still non-federal land, that might be more agricultural, might have more moisture, might have lower vegetation because they have those agricultural practices. [00:17:06] Speaker 05: those areas might serve as good habitat long term. [00:17:10] Speaker 05: And that's why the agency looked at those areas and determined that for development that happens in minor development areas, we're going to offset that by protecting in perpetuity land that's private land elsewhere at a greater than one to one mitigation ratio. [00:17:27] Speaker 01: So that's... All right. [00:17:28] Speaker 01: So which of the sites for the major development area in the federal sites [00:17:36] Speaker 01: Which of those are, or could you tell me where in the GCP or in the findings or the biological opinion FWS ever says this is a good area to put 400 Utah prairie dogs on? [00:17:51] Speaker 05: Which of the areas in the major development or? [00:17:54] Speaker 01: Which in federal land for either minor development area or major development area for your mitigation of translocation, where have you ever said [00:18:05] Speaker 01: This is a good site to create a new, you say you're going to create three new colonies. [00:18:11] Speaker 01: Where? [00:18:12] Speaker 05: Sure. [00:18:12] Speaker 05: So they discussed the conservation banks. [00:18:15] Speaker 05: It identifies three specific conservation banks that have. [00:18:18] Speaker 05: up to 311 acres, potentially, for offsetting impacts elsewhere. [00:18:22] Speaker 01: And that's in the GCP? [00:18:25] Speaker 05: Yes, that's 3JA62. [00:18:27] Speaker 05: In terms of federal land, it talks throughout the GCP. [00:18:33] Speaker 05: And I apologize for not having this. [00:18:36] Speaker 01: All right, where on page 62 does it tell me [00:18:40] Speaker 01: This is the location that we're going to create these new colonies on federal land. [00:18:48] Speaker 05: Okay, so that's the conservation bank. [00:18:50] Speaker 05: That's protected land, but not federal land. [00:18:52] Speaker 05: I don't have the site in front of me where it tells you the specific areas of federal land where the translocation colonies would appear. [00:19:00] Speaker 05: But they have been maintaining translocation sites on federal land for decades. [00:19:05] Speaker 05: They've been adding prairie dogs to those. [00:19:08] Speaker 05: They've been both creating new ones, but then also ones that have been depleted, adding prairie dogs back to those sites. [00:19:14] Speaker 01: And you're saying that, I think it's on table 11, that you're going to, I think it's 1,714 [00:19:25] Speaker 01: prairie dogs, Utah prairie dogs, on these sites that are going to be translocated. [00:19:33] Speaker 01: And you're going to take this figure out of those three years of Iron County, and you're going to say 71% of that 1,714 prairie dogs are going to be translocated. [00:19:43] Speaker 01: And we're going to step that up with a multiplier of five. [00:19:47] Speaker 01: So we're going to have like 6,000 prairie dogs. [00:19:50] Speaker 01: Why is that wrong? [00:19:52] Speaker 01: I don't, so the... How many prairie dogs are you going to trans relocate? [00:19:57] Speaker 05: The stepped up estimate estimates that over the course of 10 years, 5,466 prairie dogs will be translated. [00:20:03] Speaker 05: All right. [00:20:04] Speaker 01: And so have you ever said, where are these prairie, other than saying I'm going to put, trust me, we'll find federal land that has great vegetation, that's got great liquid sources for these prairie dogs. [00:20:17] Speaker 01: Where have you ever said that there are [00:20:20] Speaker 01: enough sites, would you say 5,000? [00:20:23] Speaker 05: 5,000 over the course of the entire 10 years. [00:20:26] Speaker 01: So in 10 years. [00:20:28] Speaker 05: 500ish a year under the step up. [00:20:30] Speaker 01: And you can't put more than 400 prairie dogs in a colony, right? [00:20:35] Speaker 00: Right. [00:20:35] Speaker 01: So where have you ever said in the next 12 years, we have 12 sites on federal land that we can put, that we can move these 5,000 plus prairie dogs? [00:20:47] Speaker 05: that from a biological perspective will be equivalent. [00:20:50] Speaker 05: So I think we need to step back again and look at the framework that the Fish and Wildlife Service is dealing with here. [00:20:57] Speaker 05: Again, this is the maximum potential amount of prairie dogs that would be moved. [00:21:02] Speaker 05: Under the expected amount, it's much lower. [00:21:06] Speaker 05: And Fish and Wildlife left that analysis in there to sort of give a better understanding of what they expect they will actually accomplish over the course of the year. [00:21:17] Speaker 01: So the five times the stepped up and down is, we were kidding, you know? [00:21:24] Speaker 05: It's not that we were kidding. [00:21:25] Speaker 05: That is the maximum amount of take that could happen over the course of 10 years. [00:21:29] Speaker 00: That's what you expected. [00:21:29] Speaker 00: That's what the GCP said. [00:21:30] Speaker 05: That's not what's expected. [00:21:31] Speaker 05: That's the maximum cap on take. [00:21:33] Speaker 01: Okay, so you have the maximum cap of five, I'm not trying to argue it, but you're saying that the maximum is we're going to have over 5,000 burglars that we have authorized. [00:21:45] Speaker 01: If Friends of Animals wants to come in eight years later, you're SOL. [00:21:50] Speaker 01: We have authorized now in this GCP the transfer relocation of up to over 5,000 prairie dogs. [00:21:59] Speaker 01: And so I'm not asking a terribly complicated question. [00:22:01] Speaker 01: I'm just saying, where are you going to put these 5,000 prairie dogs? [00:22:04] Speaker 05: So I would direct the court's attention just towards the discussion of how the agency selects translocation sites, the history of setting up translocation sites, and the improved success. [00:22:16] Speaker 05: So that's at 560, sorry, 3JA67 is where they're discussing about how we better use the sites. [00:22:24] Speaker 00: It also discusses. [00:22:27] Speaker 00: I mean, you've got all sorts of stuff about how you're going to do this. [00:22:32] Speaker 00: If you don't have an answer to my question, I'm trying to be argumentative. [00:22:39] Speaker 01: And you can defend saying, well, we hadn't done it. [00:22:44] Speaker 01: But I'm just trying to know, are they right or wrong when they say that Fish and Wildlife Service has never said that we have 1, 2, 3, 4, 12 sites that we can transfer relocate 400 prairie dogs? [00:23:00] Speaker 05: I think that is factored into the analysis of the agency determining that there would be 71% translocated, that there would be new colonies of 400 acres and three new colonies of 400 acres on the stepped up. [00:23:15] Speaker 05: The analysis here, of course, is at a general level. [00:23:18] Speaker 03: Judge Morrison. [00:23:20] Speaker 03: I think you're not addressing what I think the problem is. [00:23:24] Speaker 03: It's not about the numbers that you came up with. [00:23:26] Speaker 03: Here's how many will be transferred. [00:23:28] Speaker 03: Here's the maximum take. [00:23:30] Speaker 03: It's about the quality of the assessment, especially as to mitigation, but there has been no biological determination of the [00:23:42] Speaker 05: Quality of these colonies the numbers of top because you don't know for the trip for the translocated from major development areas or for minor development areas major, so I Yes for mitigation for major development areas I mean you're just creates no new colonies on a one-to-one level on protected land But you don't know what the quality will be but fish and wildlife already determined that the major development areas don't have quality that is important [00:24:11] Speaker 05: habitat quality that's important to the long-term survival of the species. [00:24:14] Speaker 01: Where did you say that? [00:24:16] Speaker 01: Now you have said that the major development areas are not a long-term source that is viable, I think it was on 59, because [00:24:27] Speaker 05: development. [00:24:27] Speaker 01: We're going to expect a lot of development. [00:24:29] Speaker 05: And because there's already development there. [00:24:31] Speaker 01: There's nowhere in the GC, yeah right, okay. [00:24:34] Speaker 03: Where do you actually look at the biological aspects of the colonies that are in the major developed areas? [00:24:39] Speaker 05: So I think to step back a little bit, Fish and Wildlife applied two different offset ratios for the major development and minor development areas. [00:24:47] Speaker 05: For major development areas, the agency realized we're replacing occupied habitat in these major development built-out areas that aren't important to the long-term survival of the species with occupied habitat that wasn't previously occupied habitat, but newly occupied habitat on a one-to-one ratio on federal or protected lands. [00:25:08] Speaker 05: That, they determined, was biologically offset. [00:25:11] Speaker 05: Again, applying their expertise... And what is the quality of the newly occupied? [00:25:14] Speaker 05: The fact that it's protected in perpetuity. [00:25:17] Speaker 03: I'm talking about the biological. [00:25:20] Speaker 05: Sure. [00:25:20] Speaker 05: So the translocation program and if you look at the [00:25:25] Speaker 05: Various provisions that are required as part of the translocation program involves a ton of money that is spent. [00:25:31] Speaker 03: I'm not talking about the money that's spent. [00:25:33] Speaker 03: I'm not talking about the funding. [00:25:34] Speaker 03: I'm talking about what you know ahead of time. [00:25:37] Speaker 05: These sites are treated for plague. [00:25:39] Speaker 05: They have vegetation treatments. [00:25:42] Speaker 05: They apply these aspects to these particular translocation sites to improve the habitat. [00:25:47] Speaker 03: So it doesn't matter. [00:25:48] Speaker 03: What you're saying is it makes no difference what the size of the colony is. [00:25:51] Speaker 03: It makes no difference what the quality of the colony that'll be transitioned is. [00:25:54] Speaker 03: you're going to make sure that the mitigation area is sufficient. [00:26:02] Speaker 05: I think the size does matter. [00:26:03] Speaker 05: They've measured out the 400 acres. [00:26:06] Speaker 05: That's the size that the goal for the translocated colony is. [00:26:09] Speaker 05: They determine that we're going to be applying these particular measures to improve the habitat quality to make sure it's sustainable for this species. [00:26:15] Speaker 05: We don't know where it is right now. [00:26:17] Speaker 05: But we don't need to know yet where it is. [00:26:18] Speaker 03: That's the best sort of the overarching... You'll make it just exactly what it needs to be. [00:26:23] Speaker 05: Well, again, I don't know who you'll make it, who that's applying to. [00:26:28] Speaker 05: Fish and wildlife is not. [00:26:29] Speaker 03: Well, you said it will fully offset. [00:26:30] Speaker 03: I mean, that's the choice of the agency. [00:26:32] Speaker 05: Yes, the biological determination. [00:26:34] Speaker 05: Mitigation will fully offset. [00:26:35] Speaker 05: Offsetting a colony or fragmented habitat on major development areas with a sustaining colony of 400 acres on protected land that will be protected in perpetuity and will be treated with various treatments to improve the habitat quality. [00:26:52] Speaker 05: Take into consideration things like connectivity with other colonies. [00:26:55] Speaker 05: Take into consideration the size of that colony, how close it is to other smaller colonies. [00:27:00] Speaker 05: That's all that's going to be factored in. [00:27:02] Speaker 05: And I'd like to push back a little bit on the fact that Fish and Wildlife is having no role going forward once it issues these permits. [00:27:08] Speaker 05: At page 3JA61, it talks about how the Fish and Wildlife and the Utah Department of Wildlife Resources will together evaluate habitat quality for mitigation, will determine the offset ratio that's appropriate for minor development areas. [00:27:27] Speaker 01: OK. [00:27:29] Speaker 01: So can I ask you the same question that I asked friends of animals, and that is, [00:27:35] Speaker 01: Does Fish and Wildlife or the Utah Department of Wildlife Resources, is there any analysis of comparing the biological habitats of the sites that are destroyed versus replaced prior to the issuance of a certificate of inclusion? [00:27:56] Speaker 05: Yes. [00:27:57] Speaker 01: Where do I find that in the GCP? [00:27:59] Speaker 05: Yes. [00:27:59] Speaker 05: So the permit process and requirements is at 3JA204. [00:28:05] Speaker 05: That's where it starts. [00:28:06] Speaker 05: And it details how a permittee will apply for a certificate of inclusion from the county or the master permittee, whoever that is. [00:28:15] Speaker 05: They have to first do, if they're in the clearance area for basically overlaps with Habitat [00:28:21] Speaker 05: prairie dog habitat, whether occupied or not, or within the clearance area. [00:28:25] Speaker 05: They have to do a survey to determine if there are any, have a qualified biologist do a survey to determine if there are any prairie dogs even present. [00:28:33] Speaker 05: If there are ones present, then they also have a biologist do a habitat quality assessment. [00:28:38] Speaker 01: I saw that on 204. [00:28:40] Speaker 01: What I don't see, and maybe I'm just overlooking it, is where this provision, 1.0 master permit holder process, ever says, [00:28:51] Speaker 01: that the Utah Department of Division of Wildlife Resources ever does a comparison after they get all of this biological data to make sure that there's full offset, let's say on Bob Baccarat's condominiums. [00:29:07] Speaker 01: I just don't see that on page 204 or 205. [00:29:09] Speaker 05: So there's annual reporting that the State Department does. [00:29:15] Speaker 05: They gather all the information about the location, size, quality. [00:29:18] Speaker 01: But that's not prior to the certificate of inclusion. [00:29:23] Speaker 01: Now, if you're talking about annual monitoring, you've got a lot of stuff about annual monitoring. [00:29:30] Speaker 01: Yes. [00:29:30] Speaker 01: I just want to know, prior to the issuance of the certificate of conclusion, [00:29:34] Speaker 01: Where does it say on 204 and 205 that the Utah Department of Wildlife Division of Wildlife Resources is going to do this comparison of biological habitats prior to the issuance of the certificate of inclusion? [00:29:48] Speaker 05: I don't know if it says it on those pages, but it does say it when it talks on 3JA61, where Fish and Wildlife and Utah Department are making sort of the determination of what would the offset ratio for that particular project would be. [00:30:02] Speaker 05: Now, I acknowledge there's a fair amount of flexibility in here. [00:30:05] Speaker 05: That's the design of the plan itself, which I understand plaintiffs not to be challenging. [00:30:10] Speaker 05: The benefit of this program here is that it has that flexibility [00:30:13] Speaker 05: it's on a bigger scale so that the agency can look at, you know, both project by project, but then with that annual monitoring, that three-year monitoring, determine whether check-ins, see if the measures have been fully, the mitigation is fully working, see if it's been effective, and if it's not being effective, are there things we can do with raising the fees to get more money to buy better habitat quality, [00:30:37] Speaker 05: Quality habitat to offset these losses that they're sort of that continuing on check-in process So it might not be immediately the second that the certificate of inclusion is issued But there's this ongoing process to make sure that the take that's occurring is fully offset through these other provisions And I know I'm out of time I just wanted to ask because I'm just feel like I'm missing this but what's the justification for requiring a habitat quality assessment and [00:31:03] Speaker 02: for minor development areas, but not major development areas. [00:31:07] Speaker 05: So again, that goes to Fish and Wildlife's expertise determining, looking at this species and saying, this is not, and this isn't a recovery plan, that these areas are not important to the long-term survival of the species. [00:31:18] Speaker 05: The mitigation measure there is not to replace that lost habitat with habitat of a particular quality. [00:31:24] Speaker 05: So we don't need to know the particular quality that's being replaced. [00:31:28] Speaker 05: The mitigation there is to create new colonies in places where there hadn't been colonies. [00:31:33] Speaker 05: to fully offset the take of colonies on major development land. [00:31:37] Speaker 05: And this, again, goes to a point that these are the experts applying their expertise. [00:31:42] Speaker 05: Weighing biological value is something that the agency does every day. [00:31:45] Speaker 05: And I think sometimes as laypeople, we don't necessarily understand that balance. [00:31:50] Speaker 05: But they do. [00:31:51] Speaker 05: And they've been managing this species for decades and decades. [00:31:55] Speaker 05: And it's continued to improve over the course of that time with habitat conservation plans in place. [00:32:00] Speaker 02: I'm sorry, I have one more as well. [00:32:02] Speaker 02: As I understand the fully offset route that the agency has determined to take, how do you compare full offset to what I think I read was how you were going to define translocation success, meaning there was this objective to translocate 120 to medium to large colonies onto federal lands, but then the estimate, again, maybe I have this off, [00:32:29] Speaker 02: that maybe only three small colonies would actually get translocated successfully in 10 years. [00:32:34] Speaker 02: So how do I look at the goal of full offset compared with that estimate of what is defined as success and find those two concepts to be in alignment? [00:32:46] Speaker 05: So I'm not sure the numbers are quite right. [00:32:49] Speaker 05: My understanding is that the mitigation for major development areas is to create occupied habitat under the stepped up estimate would be 1,200 acres, which would offset the 1,100 or so acres of habitat destruction through development in major development areas. [00:33:10] Speaker 05: So it'd be greater than that 1,100 amount. [00:33:13] Speaker 02: So the full offset, you're measuring an acreage, not dogs. [00:33:17] Speaker 05: Yes. [00:33:17] Speaker 05: And I think that that's what the agency has explained throughout the recovery plan and with this as well, is that this is a species that has a very short life cycle. [00:33:27] Speaker 05: Its measured success is often based on the extent of its habitat, because there is just quite this bit of turnover and quite this bit of fluctuation from year to year. [00:33:38] Speaker 05: The agency pointed out that the annual fluctuations in population for the species can be huge. [00:33:44] Speaker 05: And so how they really measure it is the extent of occupied habitat. [00:33:47] Speaker 05: And I think, again, it's within the agency's expertise to determine that that is an appropriate measure for the biological value for offsetting. [00:33:56] Speaker 05: And I would like to touch really briefly on the vacator question. [00:34:03] Speaker 05: I certainly don't think vacator is warranted here. [00:34:06] Speaker 05: If the court does go that way, we would absolutely request that it be remanded to the district court. [00:34:12] Speaker 05: This plan has been in place for almost eight years now. [00:34:14] Speaker 05: It's a 10-year plan. [00:34:15] Speaker 05: And I know it's on the record, but the species is doing incredibly well with this plan in place. [00:34:21] Speaker 05: And it would be incredibly disruptive to vacate this plan and take it out. [00:34:26] Speaker 05: in that sense. [00:34:28] Speaker 05: And I think that is all I have. [00:34:32] Speaker 05: Is there any further questions? [00:34:34] Speaker 01: So I have answers because nobody's talked about it. [00:34:41] Speaker 01: But I do have a question about the funding. [00:34:43] Speaker 01: And I want to tie it back to something you said earlier. [00:34:47] Speaker 01: So my memory is on page 182 of the GCP that [00:34:53] Speaker 01: You, not you personally, but your client has calculated the trade relocation cost per Utah prairie dog at $272 per prairie dog. [00:35:05] Speaker 01: That's based on $408,000 that you say is just a starting point, craves relocating 1,500 prairie dogs, right? [00:35:14] Speaker 05: That sounds right to me. [00:35:16] Speaker 01: Okay. [00:35:16] Speaker 01: And so if you take this stepped up estimate that you've authorized, [00:35:23] Speaker 01: but don't really anticipate, but you've authorized it, over 10 years of 5,000 plus prairie dogs being trans relocated. [00:35:38] Speaker 01: How can we say it's not arbitrary and capricious to say, I mean, that's a big number, 5,000 times [00:35:48] Speaker 01: In other words, even if you take that $408,000 and triple it, that's over a million dollars. [00:35:57] Speaker 01: And, okay, fine. [00:35:59] Speaker 01: Utah has said, well, we'll provide funding as available. [00:36:04] Speaker 01: But they've never provided over a million dollars. [00:36:07] Speaker 01: So even over a number of years, have they, at least? [00:36:11] Speaker 01: Not in the record. [00:36:12] Speaker 01: Yeah. [00:36:12] Speaker 01: Well, that's what we're confined to. [00:36:14] Speaker 05: But that analysis, again, was looking at the annual cost. [00:36:17] Speaker 05: And it said that the annual cost would be [00:36:21] Speaker 05: I don't have the number in front of me, but less than what the Utah Department has contributed annually for the last several years. [00:36:29] Speaker 05: Utah's been doing translocations for 50 years, I think, in this area. [00:36:33] Speaker 05: And the annual cost would be less than what they've been contributing. [00:36:37] Speaker 01: Your whole point, however, is, and this is why you're using the Iron County years for 1998, 2000, and 2001. [00:36:46] Speaker 01: This is unprecedented, is your argument, [00:36:50] Speaker 01: as far as the new emphasis that was not available to Iron County in the late 1990s and the early 2000s, that's your point, right? [00:37:00] Speaker 01: That this is an unprecedented shift in trans relocation. [00:37:05] Speaker 01: And so how can you say, okay, well, even though we have never experienced this sort of emphasis on trans relocation, they provided $340,000 a couple of years ago, and so we can kind of guess [00:37:19] Speaker 01: that over 10 years, they'll probably be willing to provide us over a million bucks. [00:37:24] Speaker 05: So just to clarify, Utah does and the federal agencies do translocations independent of development, and they've been doing that for many years as well. [00:37:33] Speaker 05: So I think that factored into the cost analysis too, that the department is committing this money for translocation as a minimization and mitigation measures in this plan. [00:37:43] Speaker 05: And over the last several years, they've contributed way more than that to translocations generally for the Utah program. [00:37:49] Speaker 01: Over a million? [00:37:50] Speaker 05: Yeah. [00:37:51] Speaker 05: Well, I don't know per year over a million, but certainly cumulatively over a million. [00:37:55] Speaker 01: And if we look in the GCP, we'll find that. [00:37:59] Speaker 05: Yeah, there's analysis of how much the state has been contributing to translocations generally, independent of habitat conservation plans. [00:38:06] Speaker 05: But I would also point out, too, that if it turns out that there's shortfalls in any funding with translocations, the agency is continually reviewing the funding from the mitigation measure for minor development areas and whether that standard fee is sufficient. [00:38:21] Speaker 05: And there is room there to increase that standard fee if we need to adjust the funding across the district. [00:38:27] Speaker 03: But that only goes towards the future, a future developer, not your past developer. [00:38:31] Speaker 03: It does, but it... That presumes there is future development, right? [00:38:35] Speaker 05: I think that's a reasonable assumption to make here. [00:38:38] Speaker 05: I don't think it's unreasonable for the agency to believe that there will continue to be development over this 30-year build-out for this area, but that adjustments of funding does explicitly say it'll account for any shortfalls in previous years, too. [00:39:04] Speaker 04: So there's a couple of points I'd like to address. [00:39:06] Speaker 04: And the first is that if the Fish and Wildlife Service never knows what the quality of habitat or colonies lost is, how will they ever be able to determine that this would be fully replaced? [00:39:21] Speaker 04: On 3JA211, the first sentence says habitat quality assessments are not required for projects that occur in Utah prairie dog habitats in the major development areas. [00:39:35] Speaker 04: That is where FWS estimates 90% of the take will occur. [00:39:40] Speaker 04: And to mitigate that, they will be translocating prairie dogs at a one-to-one ratio of unknown habitat quality to areas where they have specifically said, [00:39:51] Speaker 04: Arid and there's competing uses and they have not said that there's high quality habitat available there What about her? [00:39:59] Speaker 03: What about the response that they're going to make sure that this is they can they can turn this into high quality? [00:40:06] Speaker 04: Low quality can be turned into high quality your honor the Fish and Wildlife Service was supposed to make this finding before it issued the permits it cannot rely on uncertain [00:40:17] Speaker 04: maybe we'll make a good habitat quality in the future, to make that fully offset finding, it had to do some type of biological mitigation in advance here. [00:40:28] Speaker 04: And not only is the... Sorry, I see I'm running out. [00:40:34] Speaker 04: So not only is their interpretation of major development areas circular, it is also [00:40:44] Speaker 04: The recovery plan specifically says that these areas remain critical to survival in recovery. [00:40:51] Speaker 04: Its own document says until recovery is achieved, major development areas, quote, retain a high level of conservation value, unquote, because they maintain many prairie dogs and maintain connectivity with minor development areas. [00:41:05] Speaker 04: So when 90% of the take is being done there and they're not even assessing what [00:41:11] Speaker 04: habitat is lost, then there's no way to say that it's going to be fully offset. [00:41:17] Speaker 04: And these areas contain, the major development areas contain 46 medium and large colonies and 5,200 acres on private land. [00:41:26] Speaker 04: And these are areas that the recovery plans have said are essential to survival. [00:41:31] Speaker 02: But Council, why should this court substitute our [00:41:34] Speaker 02: judgment for Fish and Wildlife's expertise when they just argued that major development areas are not important to the long-term survival of the species, and that's their agency expert opinion. [00:41:45] Speaker 02: Why should we defer to that? [00:41:47] Speaker 04: Your Honor, this is not deferring to a different scientific opinion. [00:41:52] Speaker 04: This is just saying that they can't reasonably find that the impacts are fully offset when they haven't assessed the biological value here. [00:42:02] Speaker 04: And even [00:42:05] Speaker 04: Deference isn't unlimited. [00:42:07] Speaker 04: They still have to ensure the scientific integrity of their analysis, and they have not done so here. [00:42:12] Speaker 04: The habitat quality assessments that opposing counsel is talking about only apply in minor development areas. [00:42:22] Speaker 04: That page 61 is talking about conservation lengths, which are used to [00:42:27] Speaker 04: replaced habitat in minor development areas only where 10% of the take will occur. [00:42:33] Speaker 04: And even then, there's only 311 acres of or less available in those conservation banks. [00:42:41] Speaker 04: So there's no, there's no, there's no reasonable basis to conclude these would be fully offset. [00:42:51] Speaker 04: And if there are no further questions, [00:42:54] Speaker 01: All right, thank you. [00:42:55] Speaker 01: I don't think we do. [00:42:57] Speaker 01: Thank you both counsel. [00:42:59] Speaker 01: Obviously, as all cases are, it's very important, and I appreciate the excellent advocacy of both sides.