[00:00:02] Speaker 00: Case number 14-5284, Defenders of Wildlife and Center for Biological Diversity Appellants v. Sally Duell at L. Mr. Rylander for the Appellants, Mr. Tauf for the Appellees. [00:00:29] Speaker ?: Thank you. [00:01:52] Speaker 06: Good morning, and may it please the Court. [00:01:55] Speaker 06: My name is Jason Rylander. [00:01:56] Speaker 06: I represent Defenders of Wildlife and the Center for Biological Diversity in this action. [00:02:01] Speaker 06: With me at council table is Mike Senator and Karima Schoenhut from my office. [00:02:06] Speaker 06: With the Court's permission, I'm going to try to reserve about two minutes for rebuttal. [00:02:10] Speaker 06: The dune sagebrush lizard has lost more than 80% of its irreplaceable Shinrioke dune habitat. [00:02:16] Speaker 06: It has been a candidate for listing for more than 30 years. [00:02:20] Speaker 06: Fish and Wildlife Service proposed listing it as endangered in 2010 because it faced immediate and significant threats to its rare habitat from oil and gas development, ranching, and herbicide use. [00:02:31] Speaker 06: In 2012, the Service denied the rare lizard federal protection based fundamentally on a secretive, unenforceable Texas plan that was cobbled together at the last minute. [00:02:41] Speaker 06: The service's own policy sets an extraordinarily high bar for evaluating voluntary conservation efforts. [00:02:49] Speaker 06: Under the policy on the evaluation of conservation efforts, or peace, as it is sometimes called, an effort must be highly certain to be implemented and effective. [00:02:59] Speaker 06: Policy states that the service needs to be certain that the effort improves the status of the species at the time it makes a listing determination. [00:03:07] Speaker 06: To that end, the service must demonstrate that the efforts will be carried out, when they will be carried out, and whether they will be effective in eliminating threats to the species. [00:03:16] Speaker 06: Last-minute agreements generally should not affect a listing decision. [00:03:20] Speaker 04: Even if it's a good one? [00:03:21] Speaker 06: I'm sorry, Your Honor. [00:03:24] Speaker 06: Yes, well, if it's a good one, if they can show that it's highly likely to be certain. [00:03:30] Speaker 04: Yes, that's my point. [00:03:31] Speaker 04: In fact, this last minute doesn't get you too far. [00:03:34] Speaker 06: Yeah, I mean, we haven't challenged the peace policy directly. [00:03:36] Speaker 06: They can take into account one that actually eliminates threats to the lizard. [00:03:41] Speaker 06: But this one does not. [00:03:42] Speaker 06: And our brief highlights many reasons why. [00:03:44] Speaker 06: But today I'd like to focus on a couple of reasons why the Texas plan is unlike any other conservation agreement the Service has evaluated before or since. [00:03:53] Speaker 06: First, it was irrational for the service to conclude that enrollment would continue to increase after the incentive of threat of listing was removed. [00:04:03] Speaker 06: Second, the Texas plan's unprecedented secrecy provisions undermine any claim that it is certain to be implemented and effective. [00:04:11] Speaker 06: And third, based on the policy itself, [00:04:14] Speaker 06: and the amount of habitat that was enrolled at the time of the decision, it is clear that habitat loss and fragmentation is still likely to occur, because there is no meaningful cap on habitat loss and fragmentation that will save the lizard. [00:04:26] Speaker 06: The service is completely in the dark on who has enrolled, what kinds of lands have been enrolled, and the terms and conditions of enrollment. [00:04:34] Speaker 06: The plan lacks meaningful curves on development, and the service cannot directly monitor or enforce it. [00:04:41] Speaker 06: Most of all, participants can drop out at any time. [00:04:44] Speaker 06: The plan represents the kind of future speculative efforts that numerous courts and the service's own policy reject. [00:04:51] Speaker 06: In fact, the preamble warns against this very situation, where a last-minute, uncertain agreement is relied upon to effect a listing. [00:04:59] Speaker 06: As for whether this plan was not certain to be highly certain to be implemented, it was irrational wishful thinking on the part of the service that enrollment would continue to increase after listing was removed. [00:05:11] Speaker 06: It was inevitable, based on this record, that enrollment would go down. [00:05:15] Speaker 06: In fact, it has. [00:05:17] Speaker 06: The threat of listing is no longer meaningful after withdrawal decision was made. [00:05:23] Speaker 06: It's taken more than 28 years to propose listing. [00:05:26] Speaker 01: We always know there could be relisting. [00:05:30] Speaker 01: There can be relisting. [00:05:31] Speaker 01: If the enrollment goes down, if the plan's not working, the people know, the affected people know there could be relisting. [00:05:40] Speaker 06: The service could emergency list the species if the plan is not working. [00:05:45] Speaker 06: And in fact, the service should be doing that now because the evidence shows that, I don't want to get too far beyond the record, but the plan is not working. [00:05:51] Speaker 01: I just don't understand why the threat's not still there. [00:05:54] Speaker 06: Because they would have to begin again with a new listing decision, and it's really a temporal issue. [00:06:00] Speaker 06: There are many other species that are awaiting listing. [00:06:04] Speaker 06: A new listing petition, for example, would require a new proposed rule, no notice and comment, and it simply wouldn't take place in the ordinary course of events in a short enough period of time. [00:06:16] Speaker 06: Meanwhile, with insufficient number of participants in this plan, there's a competitive advantage to actually not comply with it. [00:06:23] Speaker 06: because some operators are not involved in the plan, and those that are may be at some sort of a disadvantage. [00:06:31] Speaker 06: So, again, it's just not reasonable to think that, given the way the service runs its listing policy, and we all admit that it doesn't have the resources, to think that that threat is meaningful. [00:06:43] Speaker 06: Another example, I mean, in New Mexico... Could I just be clear? [00:06:46] Speaker 04: You said the service should be doing an emergency relisting now. [00:06:53] Speaker 04: So that means it can stop everything tomorrow? [00:06:57] Speaker 04: Well, the service has within- I just want to understand the process that you contemplated with emergency testing. [00:07:04] Speaker 06: Well, yeah. [00:07:05] Speaker 06: What should happen is this decision, based on the record itself, should be remanded to the service to reevaluate, because the piece analysis is faulty and it didn't comply. [00:07:14] Speaker 04: But to get to your question- I wasn't clear. [00:07:18] Speaker 04: You're concerned about the time that a relisting with a rulemaking notice and comment and all that entails. [00:07:25] Speaker 04: An emergency relisting cuts out a lot of that time, doesn't it? [00:07:30] Speaker 06: It cuts out all that time initially. [00:07:32] Speaker 06: The service then has 240 days to repropose listing and go through another process. [00:07:36] Speaker 06: But it does have within its authority the ability to list the species right away. [00:07:40] Speaker 06: It's not doing that, even though we know that the plan is failing. [00:07:45] Speaker 06: So I have no reason to believe that the service is going to list a lizard in oil country at this time when it did not, based on the record debts before the court. [00:07:56] Speaker 04: And how is a dune complex defined? [00:08:02] Speaker 06: Oh, that's a good question. [00:08:03] Speaker 04: In other words, is it a huge area or is it defined in another way? [00:08:09] Speaker 06: Well, I think maybe the best way to explain that in the JA at 701, there is a map that looks something like this. [00:08:18] Speaker 06: And the one in the JA is not in color, but I'm happy to provide it in color if the court would like. [00:08:23] Speaker 06: But this shows the extent of Texas habitat. [00:08:28] Speaker 06: And as you can see, it's extremely fragmented. [00:08:32] Speaker 06: It's color-coded based on an overlay of where they have found lizards on top of an assessment of general habitat quality. [00:08:44] Speaker 06: And the service talks about polygons. [00:08:47] Speaker 06: This is what it's talking about, these little blobs on the map. [00:08:52] Speaker 06: And within that, [00:08:53] Speaker 06: The service does not know and cannot know under the secrecy provisions of the Texas plan exactly where habitat disturbance is occurring and whether habitat impacts are cutting off large quantities of habitat that the service thinks it needs. [00:09:11] Speaker 04: Okay, so I'm on page 701 with you. [00:09:13] Speaker 06: Yes. [00:09:15] Speaker 04: What is a dune complex? [00:09:18] Speaker 06: So a complex would include both the Shinrio [00:09:22] Speaker 06: trees or bushes, however you want to put it, with all of the root systems and then the blowouts that go around it. [00:09:31] Speaker 04: How, if I'm in the controller's office and I'm supposed to file this report, what am I filing a report on in terms of this dune complex? [00:09:45] Speaker 04: Am I looking at the whole state of Texas or what am I looking at? [00:09:51] Speaker 06: They're looking at just these areas that have been enrolled, and then they're saying essentially that within... So what you have on 701 is a dune complex? [00:10:01] Speaker 06: Well, no, I think there are many dune complexes within each of these. [00:10:03] Speaker 04: And how do you define those dune complexes? [00:10:07] Speaker 06: I'm actually not entirely sure. [00:10:10] Speaker 04: I'll ask the government so they can be prepared to tell me how to understand what the reporting requirement entails. [00:10:18] Speaker 06: But what I do know within these circles, however many complexes they're making out here, they're only reporting to the service direct habitat impacts. [00:10:29] Speaker 04: I know, but if it's one thing it's a couple of blocks, another thing if it's a couple of miles, [00:10:36] Speaker 04: Counties? [00:10:37] Speaker 04: Half the state? [00:10:39] Speaker 04: I mean, what are we talking about? [00:10:40] Speaker 06: Well, you know, so this is a county. [00:10:42] Speaker 06: That's another county. [00:10:43] Speaker 06: That's another county. [00:10:44] Speaker 06: So, you know, I think we're really talking about actual individual vegetation within these maps. [00:10:50] Speaker 04: I'll ask the government. [00:10:51] Speaker 04: Okay. [00:10:52] Speaker 06: What about the 1% cap? [00:10:54] Speaker 06: How do we factor that into the analysis? [00:10:56] Speaker 06: So, the 1% cap, we have a core disagreement both with the goal and also with the certainty that it will be achieved. [00:11:04] Speaker 06: As for the goal, and it's really a 10% cap over the course of the plan, that was designed, according to the Texas plan in J-493, it was designed to facilitate uninterrupted development in the Permian Basin. [00:11:17] Speaker 06: It locks into place expected habitat loss based on a projection of the amount of oil and gas development that the service believed would occur. [00:11:26] Speaker 06: It is not, and the service never made a determination. [00:11:28] Speaker 06: that that was the exact amount of habitat loss on top of the 80 plus percent of habitat already lost that the lizard can sustain going forward. [00:11:37] Speaker 06: Essentially this locks in existing trends and the service never explains why that is correct. [00:11:42] Speaker 06: But our biggest concern aside from that scientific point is that it can't be met in any event. [00:11:47] Speaker 06: Because at the time that the decision was made, more than 30% of Texas habitat was never enrolled in the first place. [00:11:54] Speaker 06: So it's mathematically impossible for the service to state that 1% loss of habitat in three years or 10% over 30 years will be achieved. [00:12:02] Speaker 06: landowners can quit at any time, and some have. [00:12:05] Speaker 06: The service never says what level of enrollment is actually required for the plan to work. [00:12:09] Speaker 01: Well, it had 71%, right? [00:12:11] Speaker 01: It did. [00:12:12] Speaker 01: It had 71% of... It had the experience of the New Mexico plan to look at historically. [00:12:20] Speaker 06: The New Mexico plan is a very different plan for a number of reasons. [00:12:24] Speaker 06: For one thing, it has complete transparency. [00:12:26] Speaker 01: I know, it doesn't have the secrecy. [00:12:27] Speaker 01: I understand that, but that doesn't affect the bottom line number necessarily, does it? [00:12:31] Speaker 06: It does in the sense that the next plan also covers the lesser prairie chicken, which the service had proposed to list and in fact did list last year. [00:12:38] Speaker 06: So there's a lot more incentives for people to stay in the New Mexico plan. [00:12:43] Speaker 06: cover more than one species. [00:12:45] Speaker 06: It also directly, people who sign up for that plan as a difference of inclusion, directly steer you out of blizzard habitat. [00:12:51] Speaker 06: That's the promise you're making. [00:12:52] Speaker 06: They can still drop out of the New Mexico plan, but there's a lot less reason to do so. [00:12:57] Speaker 06: So the service didn't, in our view, have [00:13:00] Speaker 06: And I think some of the scientists in the record actually indicated that once the threat of listing went away in Texas, there was no incentive. [00:13:09] Speaker 06: Staff also indicated that of the most high-value habitats, some 90 to 100 percent of it should have been enrolled at the time of listing. [00:13:17] Speaker 06: and it wasn't. [00:13:19] Speaker 06: So our concern is that the cap really is illusory and that because of that, because there are so many questions about it under the service's own standard, it could not have been highly certain to be effective given that ongoing and future habitat loss and fragmentation remained a threat and the service doesn't even know how much habitat can be lost without impacting the species. [00:13:44] Speaker 04: So part of the response, as I understand it, is that the focus of the plan is on avoidance and mitigation, so that if there is destruction above 1% in the three years and 10% over the 30 years, that will be either avoided, and if not avoided, mitigated, and that you end up [00:14:14] Speaker 04: with a basic core habitat that is preserved? [00:14:19] Speaker 06: Well, the plan actually requires that there be a positive biological effect. [00:14:24] Speaker 06: The piece requires that, and the plan itself states that mitigation is supposed to take place before any habitat is lost. [00:14:32] Speaker 04: But subject to these points I made that are in the plan. [00:14:37] Speaker 04: So why isn't that a good response? [00:14:39] Speaker 06: Because the new habitat cannot be created, landowners do not have to engage in any particular mitigation. [00:14:51] Speaker 06: They can make a determination about whether it's economically feasible to do so. [00:14:55] Speaker 06: They're not actually required to steer out of lizard habitat. [00:14:59] Speaker 06: And they're not actually required to show that there's been any positive benefit to the lizard prior to engaging in any type of habitat destruction. [00:15:09] Speaker 06: into my rebuttal time. [00:15:11] Speaker 04: I'm happy to... Let me just understand. [00:15:14] Speaker 04: I know you talk about prior to destruction, but if there is destruction, I thought the response was, well, there are these mitigation requirements. [00:15:26] Speaker 06: Well, yeah, I think the mitigation requirements do not [00:15:32] Speaker 06: necessarily kick in. [00:15:34] Speaker 06: I mean, they're not requirements. [00:15:35] Speaker 06: The landowner can decide what it is that they want to do, and the service doesn't know on any given certificate of inclusion what has been agreed to. [00:15:42] Speaker 06: So when you read through the withdrawal decision, it's a little bit schizophrenic. [00:15:46] Speaker 04: What do you mean the service? [00:15:48] Speaker 04: Here, the controller will know. [00:15:51] Speaker 04: Won't he or she? [00:15:55] Speaker 06: The controller may know, but it's up to the service at the end of the day to determine whether this plan is working. [00:16:03] Speaker 06: And if it's only getting aggregate reports, it has no idea what's actually taking place on the landscape. [00:16:07] Speaker 04: I understand you don't like the delegation here, but I just want to understand how it works. [00:16:11] Speaker 04: I understand the controller is going to know the details of each enrollee's certificate of inclusion. [00:16:21] Speaker 06: The controller has the details of the certificate of inclusion. [00:16:24] Speaker 06: That is correct. [00:16:25] Speaker 04: So the controller will know what's going on. [00:16:28] Speaker 06: But the certificates of inclusion, at least the one or two that they revealed, indicate that there is nothing binding on the landowners. [00:16:34] Speaker 06: The controller may know what's going on and what has been done, but at the end of the day will only report to the service the amount of destruction that has taken place and whether there's been any mitigation, without any real analysis of whether there's been any positive biological effect or what impact that's had on the lizard. [00:16:49] Speaker 04: How do you know the latter? [00:16:51] Speaker 06: Well, you have to look at the reports that have been filed but they're not very detailed. [00:17:02] Speaker 02: Let me ask you something and tell me why I'm wrong and I may be wrong. [00:17:07] Speaker 02: Keeping in mind that the Endangered Species Act says that an endangered species becomes so if it's in danger of extinction throughout all or a significant portion. [00:17:20] Speaker 02: Now, my understanding is most of these lizards are in New Mexico and most of the [00:17:27] Speaker 02: territory in New Mexico, 54% of it at the time of the withdrawal was being managed by the Bureau of Land Management. [00:17:36] Speaker 02: So you've got, I'm not sure what the numbers are. [00:17:39] Speaker 02: I thought it was something in 70% of these lizards are in New Mexico. [00:17:43] Speaker 02: You don't seem to have a problem with New Mexico, and even half of New Mexico, or maybe [00:17:51] Speaker 02: mixing up the percentages is being regulated by a federal agency, the BLM. [00:18:02] Speaker 02: So we've got this little bit over in Texas of what 20% of these lizards and why isn't that good enough? [00:18:13] Speaker 06: Sure because the service said it wasn't is the right answer. [00:18:17] Speaker 06: In the proposed rule they already have the New Mexico plan and the BLM plan and they found that the protections need to be in place in Texas even after they reevaluated the BLM regional land management plans and found that [00:18:30] Speaker 06: to be an adequate regulatory mechanism. [00:18:32] Speaker 06: They still spent the entire time of the administrative record working feverishly with the state of Texas to put a plan together. [00:18:40] Speaker 06: They then went ahead and determined at their last full staff meeting that the lizard should be endangered without a Texas plan. [00:18:47] Speaker 06: It's a three-legged stool. [00:18:49] Speaker 04: This is in 2010? [00:18:51] Speaker 06: I'm sorry? [00:18:52] Speaker 04: This is in 2010? [00:18:53] Speaker 06: In 2010 was the proposed rule. [00:18:55] Speaker 06: In 2012 was the final withdrawal decision. [00:18:58] Speaker 04: When your answer to Judge Henderson's question was because the service said it's not good enough, and are you referring to its statements in 2010? [00:19:09] Speaker 06: I'm referring to its statements in 2010, its statements in the record of JA 484 when they concluded that without a Texas plan, and also in the final decision itself, which relies very, very heavily throughout the decision on the alleged protections in the Texas plan. [00:19:26] Speaker 06: It's a three-legged stool, so if you find [00:19:28] Speaker 06: that either the Texas plan violates the peace, then the case should be remanded. [00:19:34] Speaker 06: And on the second hand, if setting the peace aside, if you find that there are still sufficient threats to the lizard under the five factors, then again, the case should be remanded to the service. [00:19:45] Speaker 01: Why can't the agency look at the BLM peace, the New Mexico agreement, and the Texas [00:19:51] Speaker 01: plan together and then on the Texas plan look at the cap, look at the number of enrollees, look at the history of the experience in New Mexico to inform how things are likely to develop, all with the threat of relisting if things aren't working out as being sufficient for now to deal with the problem. [00:20:14] Speaker 06: Well, for the reasons that we stated in the briefing that we talked about a bit this morning, we don't think that it was reasonable for them to assume that enrollment would continue. [00:20:22] Speaker 06: The details of the Texas plan itself are highly uncertain. [00:20:25] Speaker 06: Large amounts of habitat were not. [00:20:27] Speaker 01: There are benefits from enrollment, though. [00:20:30] Speaker 06: There are always benefits to these sorts of plans. [00:20:32] Speaker 06: But the services standard that it set for itself is that it must be highly certain to be implemented and effective in the first instance. [00:20:38] Speaker 06: And then when it looks at the five factors under the ESA, [00:20:41] Speaker 06: It must conclude that either there are no threats to the lizard and therefore no adequate regulatory mechanisms needed, or that there are threats and that they're sufficiently dealt with. [00:20:52] Speaker 06: It could have also chosen to list the lizard as threatened instead of endangered, recognizing that continued habitat loss in the foreseeable future could lead to an endangered state. [00:21:03] Speaker 06: But on remand, if the service wants to go back and try to make the assertion that the Texas land is not necessary for the lizard's survival, it can do that. [00:21:10] Speaker 06: But this record throughout, from the proposed rule straight through to the final decision, relies very heavily on the efforts in Texas. [00:21:18] Speaker 02: All right. [00:21:19] Speaker 02: We'll give you some time to reply. [00:21:20] Speaker 02: Thank you so much. [00:21:21] Speaker 02: Mr. Toth? [00:21:39] Speaker 05: May it please the court. [00:21:42] Speaker 05: The Endangered Species Act requires the Fish and Wildlife Service to make these types of determinations about whether to list endangered species after taking into account any conservation efforts by a state to protect a species. [00:21:56] Speaker 05: And that's through other conservation practices. [00:22:00] Speaker 05: That's in the statute at section 4B1A. [00:22:07] Speaker 05: What this case is essentially about is a challenge to the manner in which the service [00:22:11] Speaker 05: undertook that obligation and considered the voluntary efforts of the Texas Comptroller in the Texas Conservation Plan. [00:22:19] Speaker 05: And I want to emphasize that the challenge here is fairly narrow. [00:22:22] Speaker 05: As you all recognize, the amount of habitat in Texas for the lizard is a quarter to a third, approximately, of the overall habitat for the lizard. [00:22:35] Speaker 05: And the habitat, the approximate two-thirds of the habitat that's in New Mexico, 95 percent of it is protected either by the BLM's Land Management Plan or by the New Mexico Conservation Agreement, or it has been withdrawn. [00:22:49] Speaker 05: It's public lands that BLM has withdrawn from leasing altogether. [00:22:53] Speaker 05: So those protections assure the lizard status in New Mexico, and they're not disputed here in any meaningful way. [00:23:00] Speaker 05: That's just to set a little bit of a context for the plaintiff's challenge. [00:23:04] Speaker 01: So one of the things they're worried about are the enrolling numbers will decline. [00:23:10] Speaker 05: So if their theory is true that any time a species is determined not to be listed, not to be endangered, that will remove the incentives for these voluntary conservation plans and enrollment will drop. [00:23:24] Speaker 05: That means that the voluntary conservation plans will never matter to a no list decision. [00:23:30] Speaker 05: Essentially, they will always require the service to list. [00:23:34] Speaker 05: Otherwise, that incentive, according to their theory, will not remain. [00:23:37] Speaker 05: But in fact, as your honor pointed out, [00:23:39] Speaker 05: There is the possibility of emergency listing. [00:23:42] Speaker 05: There is the possibility that they could repetition, and yes, the service has been pressed with resources over the years. [00:23:48] Speaker 05: Plaintiffs certainly know how to get in line and litigate a deadline suit and obtain a favorable settlement that puts the service on track to making another decision over a set timeframe. [00:23:59] Speaker 05: And they've done so with consent decrees and the like, given court deadlines. [00:24:03] Speaker 01: They also say the cap won't work. [00:24:06] Speaker 01: So can you respond to that, the 1% cap issue? [00:24:09] Speaker 05: So the cap is to be reevaluated at three years, and three years past this past spring. [00:24:15] Speaker 05: So there's a lot of post-record information, and I think my friend is relying on some of it, unfairly. [00:24:21] Speaker 05: It is post-record, the implementation of the plan. [00:24:24] Speaker 05: being at the three-year mark, the service said it would look at whether the cap has been, whether it's been reached, and if it had not, or if it had, then it would then evaluate whether additional lands, up to 10% of the habitat over the 30-year life of the plan, could be allowed to be disturbed. [00:24:45] Speaker 05: So that's how the cap works. [00:24:47] Speaker 05: There's regular reporting. [00:24:48] Speaker 05: There was, for the first three years, monthly reporting by the comptroller to the service. [00:24:54] Speaker 05: And the details of those reports or the topics are in the Texas plan at JA 629. [00:25:00] Speaker 05: It lists the items that are going to be in those reports. [00:25:03] Speaker 05: I'm not sure that any of them are in the record because they are post-decisional. [00:25:08] Speaker 05: But the service reported the amount of habitat that, if any, that would be – that was disturbed over the prior time period, the amount of mitigation undertaken, [00:25:19] Speaker 05: and any enforcement issues and how those were dealt with non-compliance. [00:25:25] Speaker 05: And it is fundamentally Texas' plan and the Comptroller's plan. [00:25:29] Speaker 05: And so in this situation, the Comptroller is the primary line of authority charged with enforcing the terms of the plan. [00:25:36] Speaker 05: And as Judge Rogers, you pointed out, the Comptroller does have access to all that private data. [00:25:42] Speaker 04: Well, I'm not sure that's true. [00:25:43] Speaker 04: When you look at the Texas statute, it reaches state agencies as well. [00:25:49] Speaker 04: as federal agencies. [00:25:51] Speaker 04: So that's just a question of reading the statute. [00:25:54] Speaker 04: But what is a dune complex? [00:25:57] Speaker 05: So the best source I can point you to is on JA 702. [00:26:01] Speaker 05: It's the page after the map that my friend pointed out. [00:26:05] Speaker 05: The dunes are described as expanses of the same geologic dune formation. [00:26:10] Speaker 05: that are identified from aerial photography. [00:26:13] Speaker 04: So what does that mean in practical terms? [00:26:17] Speaker 05: So it's a geologic feature. [00:26:18] Speaker 04: No, I understand it, but the point is when you look at this map, what information is the service receiving? [00:26:27] Speaker 05: So there are numbered. [00:26:28] Speaker 05: I believe they don't have numbers on them in this map, but I believe each of these different, and they are colored in a colored version, colored shapes is a separate habitat area based on the geology that's been determined from the aerial photography, based on the vegetation that's there. [00:26:47] Speaker 05: And so those are numbered. [00:26:48] Speaker 05: Those different shapes are numbered. [00:26:50] Speaker 05: And what's reported by acreage, by each not separately numbered shape, is the acreage. [00:26:55] Speaker 05: if any, that was disturbed during that time. [00:26:58] Speaker 05: And the acreage, if any, that mitigation activities were undertaken at that time. [00:27:04] Speaker 04: So I'm the controller, and I'm trying to figure out what to report. [00:27:08] Speaker 04: What am I reporting? [00:27:09] Speaker 05: So you have a list of these different shapes. [00:27:12] Speaker 04: I've got them. [00:27:13] Speaker 05: Right. [00:27:14] Speaker 05: And you've got all the different planned participants who have entered into individual agreements with the controller. [00:27:23] Speaker 05: about what activities are going to undertake on their lands. [00:27:25] Speaker 04: So looking at this map, and I'm the controller's office, am I reporting on the Andrews area? [00:27:32] Speaker 04: Am I reporting on the Ector area? [00:27:34] Speaker 05: All of it. [00:27:36] Speaker 04: So I'm reporting on everything on 701. [00:27:39] Speaker 05: That's my understanding. [00:27:40] Speaker 04: So if I'm the Fish and Wildlife Service, what I get is, because I don't understand this exactly, a fat number. [00:27:50] Speaker 04: All right? [00:27:51] Speaker 04: And it says, [00:27:56] Speaker 04: Habitat is down by 0.5%. [00:28:00] Speaker 04: Then what happened? [00:28:04] Speaker 05: So it would look at where that habitat is located. [00:28:09] Speaker 05: And it could determine based on what shape on the map, because it is coded to the shape, the particular shape. [00:28:15] Speaker 05: And so it could see. [00:28:17] Speaker 04: You say that the Fish and Wildlife Service can do that? [00:28:20] Speaker 05: Correct. [00:28:21] Speaker 04: All it has, according to what you're telling me, is a report on this entire geographic area. [00:28:28] Speaker 04: That's 0.5% habitat down. [00:28:33] Speaker 05: Perhaps I misspoke. [00:28:34] Speaker 05: They have a report on each different shape here. [00:28:38] Speaker 05: You can see, unfortunately, this isn't in color. [00:28:41] Speaker 04: Could you supply us a color copy? [00:28:43] Speaker 05: Yes, I will do that this afternoon. [00:28:45] Speaker 05: OK. [00:28:47] Speaker 05: And the different colored shapes are separately numbered. [00:28:50] Speaker 05: And so you get dune complex number one had zero acres disturbance. [00:28:54] Speaker 05: Dune complex number 13 had 0.3 acres disturbance. [00:28:58] Speaker 04: So who is making up these colors? [00:29:03] Speaker 05: This came from a scientific paper from 2011 from a scientific researcher, Hibbitts. [00:29:10] Speaker 05: And it was identified based on the likelihood that each of these different habitat areas is going to be occupied by the lizard. [00:29:19] Speaker 05: And they determine that based on the type of plant life that's there. [00:29:23] Speaker 05: They had the Shinri oak plants there. [00:29:26] Speaker 05: And also based on the geology, if it was a dune that had the types of, they call them blowouts, these eroded areas on, I guess, the leeward side of the dune where there's a hollow that the lizard can... Are you satisfied that the controller and the Fish and Wildlife Service understand what information is going to... [00:29:43] Speaker 04: be obtained. [00:29:44] Speaker 05: Yes. [00:29:45] Speaker 05: I mean, this is a regular working relationship that they have, where they have these monthly reports, they have regular meetings. [00:29:52] Speaker 05: It's supposed to be a cooperative adaptive management framework. [00:29:55] Speaker 04: So the service could say, we look at what I'm going to assume is a red area showing it's very high. [00:30:06] Speaker 04: And while this whole area is down by 0.5%, [00:30:13] Speaker 04: can the Fish and Wildlife Service say to the controller, you have to do more in this red area? [00:30:22] Speaker 05: They could. [00:30:24] Speaker 05: Respectfully, you have the colors reversed. [00:30:25] Speaker 05: When you see the map, it will be the dark green that has the higher likelihood. [00:30:28] Speaker 05: But yes. [00:30:30] Speaker 04: What I'm talking about is categories of occurrence very high, whatever color that is. [00:30:35] Speaker 05: Correct. [00:30:36] Speaker 04: Can the Fish and Wildlife Service say to the controller, do better? [00:30:41] Speaker 05: So that's part of this re-evaluation at the three-year mark. [00:30:45] Speaker 05: The idea of the one-year cap was that would be the way the metric by which the service could say whether there needed to be something done better or not. [00:30:54] Speaker 05: I think one of the points that my friend has made about this reporting is that it's not on a parcel-by-parcel basis. [00:31:01] Speaker 04: And it's not clear to me what it is on. [00:31:03] Speaker 04: That's what I'm trying to define. [00:31:05] Speaker 05: Yes. [00:31:05] Speaker 05: So it's based on habitat units. [00:31:08] Speaker 04: I know where these trees are. [00:31:10] Speaker 04: where the trees are and the trees have roots that cover 200 miles underground so i know but that's a good habitat [00:31:20] Speaker 05: Yes. [00:31:21] Speaker 05: And so what they found is that it's a combination of the oak trees being above the surface and being on these particular geologic formations, these dunes that have these particular. [00:31:33] Speaker 04: I'm with you. [00:31:33] Speaker 04: But I'm just trying to understand. [00:31:35] Speaker 04: The Fish and Wildlife Service approving this plan, the controller's office, which as I understand is the financial office, has a responsibility of getting these certificates of inclusion [00:31:50] Speaker 04: Or has it turned it over to Texas A&M to do that? [00:31:56] Speaker 04: And Texas A&M has turned it over to this foundation. [00:32:01] Speaker 05: Yes. [00:32:01] Speaker 04: So it's the foundation that's the working body here? [00:32:05] Speaker 05: I don't know all the details. [00:32:07] Speaker 05: That arrangement is my understanding as well. [00:32:10] Speaker 05: And so I think they do the reporting, and I think you're correct that they are doing the on-the-ground work. [00:32:16] Speaker 04: So just hypothetically, if the service gets a report that says Habitat in the first three years is down by 11%, what happens? [00:32:28] Speaker 05: In the first three years, 11% would be exceeding the cap. [00:32:32] Speaker 05: So they would have found out about that, presumably well before the three-year mark, and would have adjusted the plan through their adaptive management process to further restrict. [00:32:42] Speaker 00: Who's they? [00:32:43] Speaker 05: OK, the Fish and Wildlife Service would have been meeting with the comptroller and would have, under the terms of the permit that the first Fish and Wildlife Service granted Texas, [00:32:52] Speaker 05: based on this plan would have sought to modify the terms of the permit to be more strict about what is what Texas is allowing to occur. [00:33:03] Speaker 04: So let me be clear. [00:33:05] Speaker 04: I'm a controller and the service has given me a permit and it understands this construct that I've just gone through. [00:33:15] Speaker 04: Where does it get the authority to modify the permit? [00:33:19] Speaker 05: So the permits issued under Section 10A1 of the Endangered Species Act, it's called Enhancement of Survival Permit. [00:33:26] Speaker 05: It's based on this plan. [00:33:29] Speaker 05: And there is a set of regulations that the Fish and Wildlife Service has that governs these types of permits. [00:33:33] Speaker 05: They provide a revocation procedure. [00:33:37] Speaker 04: All right, so then the service has to bring a revocation or modification proceeding against the controller? [00:33:43] Speaker 05: So that would be a last resort after all the discussions on all that, but ultimately, yes. [00:33:47] Speaker 04: Let's assume the discussions get nowhere. [00:33:48] Speaker 05: So in the worst case scenario, that would be the option for the service, would be to revoke that permit. [00:33:54] Speaker 05: And what it would do is terminate the assurances that all these landowners have. [00:33:58] Speaker 04: I understand if you get that far. [00:34:00] Speaker 04: But would the service be able to pinpoint this red area [00:34:07] Speaker 04: in the reporting materials it receives? [00:34:10] Speaker 04: And you're telling me yes. [00:34:13] Speaker 05: It would. [00:34:13] Speaker 05: It would be at the level of the habitat, but not at the level necessarily of the individual landowner. [00:34:19] Speaker 04: I understand that. [00:34:20] Speaker 05: OK. [00:34:20] Speaker 04: But we're talking about the dune complex. [00:34:23] Speaker 05: Yes. [00:34:24] Speaker 04: And this could be a 200-acre area. [00:34:27] Speaker 05: Yes. [00:34:28] Speaker 05: But potentially. [00:34:29] Speaker 05: I don't know the exact. [00:34:31] Speaker 05: I think it's probably smaller than that, but potentially. [00:34:33] Speaker 04: Well, I mean, I'm trying to find out what we're talking about. [00:34:36] Speaker 05: Yes. [00:34:37] Speaker 04: All right, and you point me to a map that is huge, and you cannot tell me how huge or small this very high area is. [00:34:49] Speaker 04: But you're assuring me that, or are you, that the service will have information as to whether the problem, the 11% problem, is in this very high area [00:35:05] Speaker 04: or in a very low area? [00:35:09] Speaker 05: I believe it does, yes. [00:35:10] Speaker 04: And then it's up to the comptroller's office or this foundation to take some action against whoever it is who signed this certificate of enrollment? [00:35:26] Speaker 05: That's my understanding, yes. [00:35:27] Speaker 05: The comptroller has the enforcement responsibility against the landowner. [00:35:31] Speaker 04: So I own some land. [00:35:34] Speaker 04: And I'm burning my land. [00:35:36] Speaker 04: And of course, this is destroying the roots. [00:35:40] Speaker 04: So what happens now? [00:35:42] Speaker 05: So if you're enrolled in the plan. [00:35:44] Speaker 04: I'm in rule. [00:35:45] Speaker 05: And that's something that it sounds like you're hypothetically removing the habitat. [00:35:52] Speaker 04: I'm destroying the habitat. [00:35:54] Speaker 05: I'm guessing that's going to be prohibited. [00:35:56] Speaker 05: Whatever the landowner does. [00:35:58] Speaker 04: I'm with you. [00:35:58] Speaker 04: So what happens? [00:35:59] Speaker 04: I'm trying to give you the worst case scenario so I understand how this protection is enforced. [00:36:07] Speaker 05: So the comptroller would go to the landowner. [00:36:10] Speaker 05: uh... this is a we're not saying with what you're doing and we're going to revoke your certificate of inclusion in the program which means from the state forward you will not receive assurances that if the lizard is listed what you're doing on the land will be uh... you'll be not cited for incidental that's assuming the controller has my name he may know my lot and square number a public record somewhere and then he can trace me but that's what has to happen [00:36:38] Speaker 05: Right. [00:36:39] Speaker 05: And I think, I will go back and take a look at that statute again, but I think it, you know, it says, may not be disclosed to any person, including a state or federal agency. [00:36:49] Speaker 05: It's talking about information that's submitted to the Comptroller. [00:36:52] Speaker 05: So I think it's like, with the... I don't know. [00:36:55] Speaker 04: If I were the Comptroller, I'd be very leery with that statute on the books. [00:37:00] Speaker 04: But at any rate, you're saying that the Fish and Wildlife Service is [00:37:05] Speaker 04: satisfied that it can get the information it needs. [00:37:09] Speaker 04: And I'm just trying to understand why it is satisfied. [00:37:13] Speaker 05: So it gets the reports by habitat complex, by the particular dunes, that it knows, based on the map, have a particular likelihood of the lizard occurring there. [00:37:23] Speaker 05: It knows what acreage has been disturbed, if any, in those particular areas. [00:37:29] Speaker 05: And it also knows the overall sum of the acreage that's been disturbed over the life of the plant, month by month. [00:37:35] Speaker 04: So I'm clear, it can negotiate with the controller to do something about it. [00:37:41] Speaker 04: And if the controller doesn't do anything, then the service can revoke the permit. [00:37:48] Speaker 05: Correct. [00:37:50] Speaker 05: And the permit is in the record. [00:37:51] Speaker 05: It's at JA802, I believe. [00:37:59] Speaker 05: three and following, and that's the enhancement of survival permit. [00:38:03] Speaker 05: We haven't talked a whole lot about that, but that is premised on this whole plan that was developed by Texas. [00:38:09] Speaker 05: So if the plan is not getting implemented in a way that is protective of the lizard, and if [00:38:15] Speaker 05: you know, in a really worst case scenario, if it were doing detriment to the lizard, then certainly it would be the Fish and Wildlife Service's responsibility under the terms of this permit to go in and, you know, ask, issue an order to show cause why it shouldn't be revoked, and ultimately after giving Texas an opportunity to respond, could revoke the permit. [00:38:35] Speaker 04: And the likely... Go ahead. [00:38:38] Speaker 05: The plan is in effect. [00:38:39] Speaker 05: The plan has been in effect, yes, since February of 2012 when the service signed this permit. [00:38:46] Speaker 05: So the decision was in June of 2012. [00:38:50] Speaker 05: So although this policy on evaluating conservation efforts is often talked about as applying to future conservation plans, this is something that was on the ground and operating at the time the service did make its decision. [00:39:07] Speaker 05: I'm past time. [00:39:10] Speaker 04: No, but just trying to think for a moment. [00:39:21] Speaker 04: I have one question about split ownership concerns. [00:39:25] Speaker 05: Yes. [00:39:26] Speaker 04: Is it your understanding that under the plan the cause [00:39:39] Speaker 04: any enrollee, if the surface owner doesn't enroll, then is the subsurface owner off the hook? [00:39:54] Speaker 04: I think the answer is yes. [00:39:56] Speaker 04: If the surface owner enrolls, is the subsurface owner bound in some way by that enrollment? [00:40:07] Speaker 04: In other words, if I own the property and you want to extract minerals, you have to get my permission, don't you, to extract on my property. [00:40:17] Speaker 04: So if I enroll, that indirectly enrolls you? [00:40:24] Speaker 05: I don't know if, as a legal matter, that's true. [00:40:26] Speaker 04: That's what I'm trying to figure out. [00:40:28] Speaker 05: I don't think, as a legal matter, the enrollment of a surface owner as a matter of law enrolls the mineral estate owner. [00:40:34] Speaker 05: The mineral estate owner is going to have some under state law, presumably some reasonable right to access the minerals in a way that doesn't waste the surface. [00:40:44] Speaker 05: And what really, I think, confuses this issue of surface versus mineral estate is we're talking about [00:40:51] Speaker 05: activities related to the lizard's habitat that all occur on the surface. [00:40:56] Speaker 05: It's either going to be mining and the placement of well pads or drilling. [00:41:02] Speaker 05: It's all talking about how it impacts the chinnery oak dunes on the surface. [00:41:07] Speaker 05: So if the land is primarily being used for oil and gas leasing at the present time, it makes most sense to have the oil and gas operator [00:41:15] Speaker 05: agreeing to some voluntary terms about where to place the well pads, consolidating infrastructure, and the like. [00:41:23] Speaker 05: And that's going to be what's most important to the conservation needs of the lizard. [00:41:27] Speaker 05: Now, if the fee owner, when they come back into possession of that area, wants to go and remove all the Shinri oak dune with herbicide, and it's not enrolled in the plan, then they're going to have to look to state law to see if there are provisions there that would prohibit [00:41:44] Speaker 05: that person from doing that. [00:41:45] Speaker 05: But really, it's focused on the activity that's most important for the lizard. [00:41:50] Speaker 05: And in many cases, that's going to be one or the other, but not both. [00:41:54] Speaker 04: And could I be clear, too, at the time of approval of the plan, or at the time, I guess the relevant time is the withdrawal of the proposed rule to list, [00:42:11] Speaker 04: is the so-called core habitat area in Texas covered by certificates of inclusion? [00:42:20] Speaker 04: So I don't know that that's... In other words, in the record it says that the area in Texas is not a fragmented area, but it's what I'll call a core habitat area. [00:42:39] Speaker 04: Are the 71 percent in that core area or elsewhere, or we don't know? [00:42:44] Speaker 05: I don't know. [00:42:44] Speaker 05: The fragmentation figures are roughly above – well, less than half in each state and less than half overall in both states is fragmented. [00:42:55] Speaker 05: And so the service looked to scientific literature on other similar species because there's no best available science on this species for how big of a habitat patch they need. [00:43:07] Speaker 05: And so they looked by analogy to other species and said that, you know, that quantity of habitat has enough core areas in it that we're comfortable that [00:43:17] Speaker 05: you know, even if the Texas plan only covers 70 percent, that there's still enough in both states overall to provide for the lizard's needs. [00:43:26] Speaker 05: And for that reason. [00:43:27] Speaker 04: And so back to your response to Judge Kavanaugh. [00:43:31] Speaker 04: So the point is that the service is defining endangered in terms of the need to list. [00:43:44] Speaker 04: And if [00:43:46] Speaker 04: everything's working just fine in New Mexico, it almost doesn't matter what happens in Texas. [00:43:55] Speaker 05: It's difficult to say on this record that it would be harmless error if the service had not relied properly on the Texas plan here. [00:44:05] Speaker 05: What the statute says is that the service is supposed to take into account the conservation efforts, any conservation efforts made by a state. [00:44:14] Speaker 05: why it took account of both states' conservation efforts here. [00:44:18] Speaker 05: And I'm not aware that there's a finding, although at the outset of my argument, I presented the context. [00:44:23] Speaker 05: I think it's important to keep in mind the context. [00:44:26] Speaker 05: Let me be clear, I'm not making a harmless error argument. [00:44:28] Speaker 05: I'm also not saying they couldn't reach the same result if they reanalyzed it, but I can't. [00:44:34] Speaker 05: We don't know. [00:44:34] Speaker 05: We don't know. [00:44:35] Speaker 05: Exactly. [00:44:36] Speaker 05: That's the point. [00:44:37] Speaker 04: I just raised it because of the way you put it in your brief. [00:44:41] Speaker 05: Yes. [00:44:45] Speaker 02: All right. [00:44:46] Speaker 02: If there are no more questions. [00:44:47] Speaker 02: Thank you. [00:44:48] Speaker 02: How much time does Mr. Rylander have? [00:44:53] Speaker 02: Okay, why don't you take two minutes. [00:44:59] Speaker 06: I just need to point out a couple things about this permit. [00:45:02] Speaker 06: The permit that Council cited at JA 803 through 807 does not exist. [00:45:12] Speaker 06: That is because, at letter N, it states that it becomes effective upon the date the dune's lizard is listed as threatened or endangered. [00:45:21] Speaker 06: Outside of a Section 10A1A permit, which applies only to listed species, the Service has absolutely no enforcement authority over this Texas plan. [00:45:31] Speaker 06: It is now entirely in the hands of the Texas Comptroller. [00:45:35] Speaker 06: The Service can attempt to negotiate changes to the Certificates of Inclusion, but the individual landowners don't have to agree to anything. [00:45:42] Speaker 06: they can drop out if they want to conduct habitat modification. [00:45:46] Speaker 06: And we don't even know what they've agreed to do. [00:45:49] Speaker 06: But assuming that they don't now agree to do what they said they were going to do, they don't have to take any further steps. [00:45:56] Speaker 06: So the only recourse for the service at this point is to go back and relist. [00:46:00] Speaker 01: And relisting is... But that is a significant recourse. [00:46:04] Speaker 01: It is a significant recourse that would take a lot of... Texas has an incentive [00:46:09] Speaker 01: to avoid that because states prefer to do this on their own so they have an incentive to to do the steps that they've agreed to do, right? [00:46:22] Speaker 06: Again, substantively, the plan that is in place does not provide protections to the lizard. [00:46:28] Speaker 06: What we are going to have to go through is a listing process, which has already taken 28 years to get to a proposal. [00:46:35] Speaker 06: It's sort of a, a colleague of mine put it, sort of a treadmill to hell in that you have to keep going through the same process and the same process until we finally have some sort of a balance between something that either gives [00:46:45] Speaker 06: the service and the lizard adequate protections or the service can conclude on a different record that there's no phrasing the statutory standard. [00:46:55] Speaker 01: The first extinction. [00:46:57] Speaker 01: Right. [00:46:58] Speaker 04: So that's I don't know how you can make the statement you just made unless you're asking the court to assume that everybody acted in bad faith. [00:47:07] Speaker 06: We're not assuming that everyone's acting in bad faith, but we are saying that there are different types of voluntary agreements. [00:47:12] Speaker 06: There are those that are contractual. [00:47:13] Speaker 06: There are those that are incentive-based. [00:47:15] Speaker 06: There are some that could work. [00:47:16] Speaker 06: This particular one does not provide any high level of certainty to the service that protections are going to be in place, especially when more than 30% of the habitat was not enrolled at the time of listing, and that number has increased since then. [00:47:32] Speaker 06: the service has no recourse except to go back and start a listing process over again, which could take many years. [00:47:39] Speaker 06: And so on this record, based upon what the service knew at the time, I don't think it passes the straight face test that this was certain to be implemented and certain to be effective in protecting the lizard. [00:47:57] Speaker 06: The actual reports. [00:47:58] Speaker 04: Of course, our standard here would be [00:48:02] Speaker 04: arbitrary and capricious. [00:48:05] Speaker 04: And you're close to saying this is just contrary to law. [00:48:10] Speaker 06: Well, there are two decision points. [00:48:14] Speaker 06: So the first one is under the peace analysis. [00:48:16] Speaker 06: The service's own standard is highly certain. [00:48:19] Speaker 06: So was it arbitrary and capricious for the service to conclude that these were highly certain? [00:48:24] Speaker 04: Right. [00:48:24] Speaker 04: And you cite a comment by one scientist [00:48:29] Speaker 04: And the service points out or the secretary points out that, you know, others had other views, for example. [00:48:41] Speaker 06: There are no other views in the record that I am aware of. [00:48:44] Speaker 06: There's repeated statements by staff scientists that indicate high levels of enrollment would be required. [00:48:50] Speaker 06: There are repeated statements by multiple people that say the secrecy provisions were non-starter and that they don't have adequate information. [00:48:57] Speaker 06: And then there is a conclusion in the withdrawal decision suddenly that they do. [00:49:02] Speaker 01: But it's a predictive judgment that the service has to make right about [00:49:07] Speaker 01: effectiveness, looking at a variety of different factors coupled with a differential standard of review here. [00:49:14] Speaker 01: That's the problem that I have picking up on Judge Rodger's question. [00:49:19] Speaker 01: You've referred many times to certainty effective, but certainty is some level of confidence, right? [00:49:27] Speaker 01: And effective, though, is [00:49:29] Speaker 01: is an eye of the beholder kind of evaluation of many circumstances, and you're making a future prediction about that. [00:49:37] Speaker 01: It's very hard for us, it seems to me, to second-guess that. [00:49:41] Speaker 01: You've made good arguments in the first instance, but sitting here is not the expert on all this. [00:49:47] Speaker 01: It's hard for us to make the prediction. [00:49:49] Speaker 06: Well, the court does not need to defer to the service's wishful thinking. [00:49:52] Speaker 06: The court needs only to defer to scientific evidence and scientific conclusions and the record to the extent that they're not uncontroverted. [00:50:00] Speaker 06: As far as implementation is concerned, it's basic behavioral economics. [00:50:04] Speaker 06: It's not actually a scientific determination to which you need to give any particular weight. [00:50:11] Speaker 01: As for the effectiveness, I would simply read- There's a lot- you're hinging a lot on that incentive point, that they don't have an incentive. [00:50:19] Speaker 01: And I understand that. [00:50:21] Speaker 01: That's what I'd be doing too. [00:50:23] Speaker 06: Well, again, I think it was completely unreasonable for the service to include that enrollment would increase, and in fact, it hasn't. [00:50:31] Speaker 06: So when you look then at what the piece requires, the service's own standards that it set for itself, the requirement that there be biological responses, [00:50:40] Speaker 06: And there'd be high levels of certainty. [00:50:42] Speaker 06: It didn't meet that. [00:50:43] Speaker 06: And then when you look at the effectiveness, again, you need to look at the Texas plan itself. [00:50:48] Speaker 06: And as the discussion this morning has kind of indicated, it's really difficult to understand what this plan actually does. [00:50:54] Speaker 06: It's not for lack of trying over the course of this litigation and a lot of time spent on this. [00:51:01] Speaker 06: The service only gets [00:51:02] Speaker 06: total averages within that map of each of those colored circles of the amount of habitat loss. [00:51:08] Speaker 06: It doesn't really know. [00:51:09] Speaker 06: And it went in great detail in the rule to show, you know, when it's trying to say that there is a lot of habitat or there is some habitat left for the lizard exactly where well pads are, it's not going to get that information under this. [00:51:19] Speaker 06: It's only going to get, well, in the green polygon, [00:51:22] Speaker 06: You know, there's been an acre of disturbance, but we don't know where or how or to what impact that has had on fragmentation. [00:51:29] Speaker 06: So there's just too much. [00:51:31] Speaker 06: The service doesn't know. [00:51:32] Speaker 06: And there are many, many other plans that states have developed for other species that are held to a higher standard. [00:51:39] Speaker 06: If the peace policy means anything, [00:51:42] Speaker 06: And if the Endangered Species Act is to be harmonized, Section 4B1 and Section 4A1D and all of the factors are to be read in a way that makes sense, and the service needs to be held to the standard that it's set for itself, that these plans have to mean something, and they have to be able to rely on them. [00:51:58] Speaker 06: And if they don't have that high level of certainty, then that plan should be rejected. [00:52:03] Speaker 06: And if you have no further questions, that's my final point. [00:52:09] Speaker 06: Thank you.