[00:00:04] Speaker 00: Case number 14-5121, National Association of Home Builders at Elle Appellants versus United States Fish and Wildlife Service and Sally Jewell and her official capacity as Secretary, United States Department of the Interior. [00:00:18] Speaker 00: Mr. Peterson for the appellants, Mr. DiMascio for the appellees. [00:00:24] Speaker 04: I'd like to reserve two minutes for the bottle, please. [00:00:28] Speaker 04: May it please the Court, my name is Ray Peterson and I'm here on behalf of the Appellants. [00:00:31] Speaker 04: It may seem expedient to hold that this case is simply a repeat of the attempted intervention of the Safari Club, but such a finding would ignore the substantial differences between the parties and the nature of the action brought by Appellants. [00:00:44] Speaker 04: The Service would have the Court ignore the totality of the Endangered Species Act licensing process, a process that involves much more than simple allocation of agency budget. [00:00:53] Speaker 04: Appellants are property owners that both develop land and engage in species protection. [00:00:57] Speaker 04: They are the center of the Endangered Species Act. [00:01:00] Speaker 04: The presence of candidate species and habitat on their land affects several concrete interests that confer them standing. [00:01:08] Speaker 04: The service would have the court ignore the fact that it has well-developed policies and practices to ensure protection of candidate species and to annually gauge the status of all the species petitions before it. [00:01:19] Speaker 04: The record before the court is replete with examples of how the service interacts with landowners and local governments. [00:01:25] Speaker 04: The service both solicits and at times coerces landowners to engage in activities to protect candidate species. [00:01:31] Speaker 04: These activities benefit the species, the service, and landowners alike. [00:01:36] Speaker 04: Such property and conservation interests have been recognized by the Court countless times in other contexts. [00:01:41] Speaker 04: Finally, the service would have this court ignore the fact that the settlement agreements fundamentally change the service's policies and practices and have a negative impact on appellate's concrete interests and effectively amend the act. [00:01:53] Speaker 04: This has been properly pled and backed up with specificity. [00:01:56] Speaker 01: So as you know, we had the decision in the section four deadline litigation, the Safari Club case. [00:02:01] Speaker 01: Can you give us your argument as to how the argument that you're making is distinct from the one that was rejected there? [00:02:09] Speaker 04: Sure, Your Honor. [00:02:10] Speaker 04: Well, fundamentally, we are property owners that both engage in conservation activities and that own land that is affected by the presence of habitat and candidate species. [00:02:21] Speaker 04: Safari Club came there, they asserted interest in delay in order to hunt species. [00:02:26] Speaker 04: We believe that our interests are fundamentally recognized under the Endangered Species Act and really landowners [00:02:33] Speaker 04: who engage in these activities are at the center of the act. [00:02:36] Speaker 04: And the service itself has sped in every context but before this court the benefits of such activities. [00:02:42] Speaker 04: It benefits the species by getting ahead of species conservation. [00:02:46] Speaker 04: It benefits the landowners by allowing them to deal with endangered species act effects up front. [00:02:52] Speaker 04: And it benefits the service itself because the service is allowed to save on agency budget and then otherwise doesn't have to affect those species. [00:03:00] Speaker 04: And I would also add that [00:03:02] Speaker 04: All they ever got to was denial of standing during intervention for the Safari Club. [00:03:08] Speaker 04: We filed a lawsuit that has four counts, both Administrative Procedure Act and the Endangered Species Act, and we make many different arguments that were not raised below. [00:03:18] Speaker 03: What specific procedural violation are you alleging here? [00:03:22] Speaker 04: OK, well, we have four different counts. [00:03:26] Speaker 04: Overall, it's the failure to follow the procedures for considering species status, which has many aspects to it. [00:03:34] Speaker 04: One, it's the failure to use best available science for rendering those decisions. [00:03:38] Speaker 04: We believe the settlement agreements essentially made a static decision on species status that is inconsistent with the act. [00:03:47] Speaker 03: Well, your challenge is to the agreement, correct? [00:03:51] Speaker 03: in other words, to them entering into the agreement. [00:03:54] Speaker 03: And the agreement itself simply sets out Greece to do something within a particular time, but doesn't affect their discretion. [00:04:05] Speaker 04: Your Honor, the agreements aren't merely a deadline. [00:04:09] Speaker 04: They change the status of species, and the change causes various parties to act immediately, including the service. [00:04:16] Speaker 04: And we've both pled this, and we've shown this in our declarations. [00:04:19] Speaker 04: It fundamentally amends the act. [00:04:21] Speaker 04: It's evidenced by the service's own interaction. [00:04:23] Speaker 04: The Kauffman Declaration shows what happens when the service switches from cooperation on candidate species to coercion. [00:04:31] Speaker 04: We're about to list the species. [00:04:33] Speaker 04: And we believe that this was done without notice and comment under the Administrative Procedure Act. [00:04:38] Speaker 04: It's effectively a rule. [00:04:40] Speaker 04: We believe they've amended the guidelines, the LPN guidelines, and the statute makes clear that any amendment to the guidelines is supposed to have notice and comment. [00:04:48] Speaker 01: But some of the species weren't listed, right? [00:04:50] Speaker 04: Some of the species were not listed. [00:04:52] Speaker 04: That's correct. [00:04:53] Speaker 01: So doesn't that tend to confirm that we don't know what's going to happen as a consequence of the Accord we have to wait to see well many more were and I believe that you know with the [00:05:05] Speaker 04: Under the law, we don't necessarily have, in order to do, we're only attempting to gain standing. [00:05:10] Speaker 04: We're looking at the broader picture, not species by species. [00:05:12] Speaker 04: Under the law, we don't have to demonstrate that the actual consequences had the agency not acted. [00:05:18] Speaker 04: We just have to show a reasonable probability. [00:05:20] Speaker 04: And for some of the species, they were listed. [00:05:22] Speaker 04: And I think that in itself speaks to the reasonable probability. [00:05:25] Speaker 02: Mr. Peterson, you said you had four different angles on the procedural violations, and your first one was a failure to use best available science, and you had some colloquy with Judge Brown about that. [00:05:37] Speaker 02: Did you have others that you wanted to? [00:05:40] Speaker 02: Spell out. [00:05:41] Speaker 04: Well, it's denying our members the opportunity to continue to be part of the Endangered Species Act process. [00:05:49] Speaker 04: By predetermining the listing priorities for the 251 candidate species, they're basically ignoring the process which was the CNOR process, the candidate [00:05:59] Speaker 04: They make that essentially a meaning process, and this is something that we have participated in since 1975. [00:06:05] Speaker 02: I understand, your brief and you standing here make an attractive policy argument that you could have a statute that has [00:06:16] Speaker 02: put some sort of an affirmative wait period in place so that landowners and others could try to mitigate and avoid a listing. [00:06:26] Speaker 02: But I actually read the statute a little bit differently, that this warranted but precluded really is just, hey, if we could get to everything right away, we would, but we can't. [00:06:37] Speaker 02: And so we're just stacking this up and putting it in line to be considered. [00:06:43] Speaker 02: for listing, whereas it just seems like you're speaking as if the statute is written with a different set of objectives in mind. [00:06:53] Speaker 04: Well, I believe our objections are completely consistent with the act. [00:06:57] Speaker 04: I think the court needs to look at the act in a more broader context. [00:07:01] Speaker 04: What the service says when it has all these species out there are, first, come to us. [00:07:05] Speaker 04: Give us information. [00:07:06] Speaker 04: They're soliciting information. [00:07:07] Speaker 04: They're actively asking our clients to set aside land. [00:07:11] Speaker 04: They're asking us to fund studies. [00:07:13] Speaker 04: And then on the day that they, and that's part of the process, and it's completely consistent with the act. [00:07:17] Speaker 04: This is not done simply for the sake of delay. [00:07:20] Speaker 04: We're not the safari club. [00:07:21] Speaker 04: We're not out there hunting. [00:07:22] Speaker 04: And I believe it's completely consistent with the act to play a role to have landowners and groups that are conserving land. [00:07:28] Speaker 02: I'm not saying it's inconsistent, but let me just try to sharpen this a little bit. [00:07:33] Speaker 02: If one of the results of the settlement, the years under, you know, fulfilling the terms of the settlement, made the service more efficient in processing proposals to list species, and instead of taking ten years to list species, they're now able to do it within six months, they make a no or yes decision going forward, [00:07:55] Speaker 02: Would that way of operating under the Act, in your view, be in derogation of your client's rights, or in some way fail to fulfill the purposes of the Act? [00:08:07] Speaker 04: I suppose, Your Honor, it would depend on how it's done. [00:08:09] Speaker 04: I mean, our real point is that the decision-making process used to be based on sound science and all the other aspects of the Endangered Species Act. [00:08:17] Speaker 04: With the agreements, this decision-making process went from one that was public to which we participated. [00:08:22] Speaker 04: Either we were asked to participate, which is sufficient under the case law. [00:08:26] Speaker 04: It's enough to have an agency. [00:08:29] Speaker 04: We're both compelled and asked to participate. [00:08:31] Speaker 02: It's still public in the sense that they have to [00:08:34] Speaker 02: They have to do a rulemaking on the final listing now. [00:08:38] Speaker 04: Yes, they do. [00:08:39] Speaker 04: But at that point, the harm has already happened. [00:08:41] Speaker 04: And they also have to do a rulemaking if they're going to amend the LPN route. [00:08:44] Speaker 04: So the process for prioritizing species, for example, has always been a public one based on priority. [00:08:50] Speaker 04: And a lot of that has to do with the actions of our clients in preserving species, providing information. [00:08:56] Speaker 04: When the service went into a dark room and met with environmental groups and decided what the priority was, they reshuffled the deck. [00:09:03] Speaker 04: And we believe that's arbitrary and capricious. [00:09:05] Speaker 04: We believe that, especially for purposes of standing, our role as both requested by the service, and we believe we have a right under law as well. [00:09:13] Speaker 02: Well, like you said, they went into a dark room. [00:09:15] Speaker 02: And they went into a federal court, which is an open public forum. [00:09:18] Speaker 02: And they had evidence. [00:09:20] Speaker 02: And did you seek to intervene in that litigation? [00:09:23] Speaker 04: We did not. [00:09:24] Speaker 04: Safari Club did. [00:09:24] Speaker 04: And they were thrown out. [00:09:26] Speaker 04: And if we don't have a right to be a part of that process, [00:09:30] Speaker 04: I honestly don't know who does, because these are the parties that the Engager Species Assault Act is ultimately all about land preservation and protection. [00:09:38] Speaker 04: Our clients are the ones that have the land. [00:09:40] Speaker 04: We're the ones that are ultimately regulated from the very beginning. [00:09:43] Speaker 04: And I want to make it clear that the effects of the act do not crystallize upon listing. [00:09:48] Speaker 04: The effects of the act are felt at the candidate species status, and they were felt immediately. [00:09:54] Speaker 04: And we have declarations backing this up, that the service itself [00:09:57] Speaker 04: When it switches, when the deadline comes up, artificial deadline based on agreement, it immediately switched from, would you please work with us to, you shall comply and you shall change your landing, because listing is inevitable. [00:10:09] Speaker 04: And we believe we've demonstrated that in our declarations. [00:10:12] Speaker 04: And at this point in the proceeding, that's all we have to do. [00:10:15] Speaker 04: Again, we're just talking about standing here. [00:10:17] Speaker 04: And we just urge the court to be careful not to decide questions on the merits against us when we're only here at a point of declarations on standing. [00:10:26] Speaker 04: Thank you. [00:10:28] Speaker 04: I'm here for further questions. [00:10:29] Speaker 04: I know my time is up. [00:10:31] Speaker 03: Thank you, Council. [00:10:32] Speaker 04: Thank you. [00:10:47] Speaker 05: Good morning, Your Honors. [00:10:48] Speaker 05: Nicholas DiMassio on behalf of the U.S. [00:10:49] Speaker 05: Fish and Wildlife Service, and may it please the Court. [00:10:52] Speaker 05: The U.S. [00:10:53] Speaker 05: Fish and Wildlife Service here decided to exercise its discretion under the Endangered Species Act to clear out a backlog of 251 candidate species that had been developing for over a decade. [00:11:04] Speaker 05: The backlog developed primarily due to constraints on the agency's congressionally appropriated listing budget and a steady stream of new listing petitions. [00:11:13] Speaker 05: Now, to clear out that backlog, the service entered into the settlement agreements at issue here, which preserve the agency resources necessary to decide whether or not to list the candidate species as threatened or endangered. [00:11:29] Speaker 05: Home builders would like this court to overturn those settlement agreements because they do not want the service to clear out the backlog. [00:11:36] Speaker 05: They would prefer that the service never decide the species status. [00:11:40] Speaker 05: The district court's judgment that home builders lack standing to challenge the settlement agreements should be affirmed for two reasons. [00:11:47] Speaker 05: First, home builders are trying to relitigate this court's previous decision that the ESA's warranted but recluded provision is, and I'm quoting here, a relief valve for the benefit of the service given its limited resources. [00:12:01] Speaker 05: Under that holding, home builders have no procedural right to force the service to consider making a warranted but recluded finding for the candidate species edition. [00:12:10] Speaker 05: Second, under this court's holding in Percy Giuseppe, the agreements do not cause any actual or imminent injury to home builders. [00:12:19] Speaker 05: The agreements merely set deadlines for the service to decide whether or not to propose a listing rule, and they preserve the agency's discretion not to propose a listing rule. [00:12:30] Speaker 05: Now, with respect to procedural injury, this court has already decided, in Safari Club's previous challenge to the self-same agreements, that they do not cause the alleged procedural injuries here. [00:12:41] Speaker 05: Homebuilders offered nothing to distinguish the procedural injury analysis in this court's previous decision. [00:12:47] Speaker 01: That's the question. [00:12:47] Speaker 01: So your opposing counsel says that if they don't have standing to raise a procedural injury claim that nobody would. [00:12:53] Speaker 01: And I'm not sure that that necessarily suggests a conclusion one way or the other, but is that premise right? [00:13:01] Speaker 05: Well, with respect to procedural injury, Your Honor, [00:13:04] Speaker 05: As this court previously held, the warranted but precluded provision that they're focusing on is designed as a relief valve for the benefit of the service to protect its interests because of its limited resources. [00:13:18] Speaker 05: And so you're absolutely correct that if the focus of the procedural injury argument is on the warranted but precluded provision, [00:13:25] Speaker 05: No private individual would have standing to seek redress based on that procedural injury. [00:13:33] Speaker 05: And that's specifically because the procedures in section four are actually designed to expedite the services decisions based on listing petitions consistent with its resources. [00:13:44] Speaker 05: And so no private parties have any procedural right under the warranted but precluded provision because they're simply not designed to protect their interests. [00:13:55] Speaker 05: Furthermore, with respect to injury in fact, this court has already decided that this type of settlement doesn't cause any actual or imminent injury. [00:14:05] Speaker 05: In Percy Acepe, this court confronted a settlement agreement that included a timetable to decide whether or not to issue a rule [00:14:14] Speaker 05: and specifically reserve the agency's discretion not to issue a rule. [00:14:20] Speaker 05: In that case, this court held that the plaintiffs lacked standing because they only faced a possibility of adverse regulation, and the same analysis applies here. [00:14:29] Speaker 05: The agreements do not regulate homebuilders' property, nor do they render any voluntary conservation efforts worthless as they contend. [00:14:38] Speaker 05: because they merely set a time to decide whether or not to propose a rule, and they reserve the agency's discretion not to propose a rule. [00:14:46] Speaker 05: And that's borne out by the facts here, because if you actually look at the decisions that the service rendered, the decision decided that listing was not warranted for five out of the nine pocket gopher species that they complain about in their complaint. [00:14:59] Speaker 02: Mr. DeMessio, let's assume that the service is clipping along and keeping up with the listings, and landowners in the position of homebuilders' members want to [00:15:15] Speaker 02: basically be heard on their efforts to preserve habitat and to preserve species and indeed may want to delay a determination one way or the other whether a species needs to be listed. [00:15:27] Speaker 02: Is there any procedure for that? [00:15:30] Speaker 05: There's no procedure to delay a decision on a proposed listing rule. [00:15:36] Speaker 05: And that's specifically because the Endangered Species Act forecloses judicial review in the circumstance where the service makes a warranted finding and proposes a listing rule. [00:15:47] Speaker 02: I'm not talking about judicial review. [00:15:48] Speaker 02: I'm talking about administratively within the service's own process. [00:15:52] Speaker 02: wanted to say, hey look, let's not list, let's do X, Y, and Z, and that'll really, the species will bounce back, and it really won't need to be listed, and you know, is there a process for that under the statute? [00:16:05] Speaker 02: I don't, I'm not aware of one, but I was asking you whether administratively or statutorily, there's some kind of process for that. [00:16:11] Speaker 05: The statute does not set up any right to participate at that level of the service's decision making. [00:16:17] Speaker 05: What it states is that within 12 months of receiving a listing petition that the service believes may present substantial evidence that listing the species is warranted, it needs to make one of three decisions. [00:16:30] Speaker 05: That is, either it's not warranted, it's warranted, or it's warranted but precluded. [00:16:35] Speaker 05: And the statute simply does not provide any opportunity [00:16:39] Speaker 05: any right to provide comment at that stage of proceedings. [00:16:43] Speaker 05: That's what this court specifically held in its previous decision in the Safari Club challenge. [00:16:48] Speaker 05: Now that's not to say that the service doesn't open up the doors to members of the public who have an interest and to the extent that it can consider their opinions on where the species stand [00:17:01] Speaker 05: while the species is precluded, it certainly does provide opportunities in a voluntary sense to come forward with that information. [00:17:11] Speaker 05: There's no procedural right to provide that information. [00:17:14] Speaker 02: There is a right upon listing notice and comment. [00:17:18] Speaker 05: There's a right upon the proposal of a listing rule. [00:17:21] Speaker 05: And that's found in section 1533. [00:17:25] Speaker 05: You can see the procedures there are specifically set up to provide members of the public with an opportunity to comment upon a proposed listing rule. [00:17:35] Speaker 05: And to the extent that what home builders are arguing here is that they've been shut out of the process, that's simply not true. [00:17:42] Speaker 05: Because upon proposal of a listing rule, all they need to do is participate in the notice and comment process. [00:17:49] Speaker 05: Ultimately, a rule is issued that they think is adverse to their interests. [00:17:53] Speaker 05: They can attempt to bring suit to challenge that rule. [00:17:55] Speaker 03: Mr. Peterson seems to be arguing that the effect of the agreements was to shut people out of the process who had been able to participate earlier. [00:18:07] Speaker 03: And you did say that even pre-listing, there's some opportunity for the public to participate. [00:18:15] Speaker 03: Or did I misunderstand you? [00:18:17] Speaker 05: When the service makes an affirmative warranted but precluded finding, finds a species to be precluded, then subsequently there are opportunities for members of the public to provide the service with further information about the species to inform its decision making. [00:18:35] Speaker 05: But there's no procedural right at that stage to block a proposed listing rule because you think that the service should allocate its resources differently. [00:18:44] Speaker 05: And the way that you know that is looking at the judicial review provision of the Endangered Species Act. [00:18:49] Speaker 05: There's no judicial review provided when the service makes a warranted finding and proposes a listing rule. [00:18:54] Speaker 05: At that stage, what happens is the service provides an opportunity for notice and comment. [00:19:01] Speaker 05: Members of the public can come forward to explain why they think that voluntary conservation efforts or other efforts to protect the species are sufficiently protective. [00:19:10] Speaker 05: And then, you know, the service comes out with its final decision, and if it's adverse to your interest, you can seek to challenge that final decision. [00:19:17] Speaker 05: And you can see that borne out again by the facts here, because if you look at the Federal Register notice for the final decisions, the service's decision about the Shelton pocket gover, for example, the service specifically, one of the reasons why it decided that listing was not warranted for that particular species specifically was because it found [00:19:35] Speaker 05: that existing habitat protection efforts were sufficiently protective of that species. [00:19:42] Speaker 05: And so again, you can see the process playing out. [00:19:44] Speaker 05: These agreements specifically reserve the agency's discretion as to its substantive decisions. [00:19:51] Speaker 05: There's no procedural right at that stage of the proceedings to have any opportunity for comment. [00:19:57] Speaker 05: And so at the end of the day, home builders here have not alleged any procedural injury or any ultimate injury, in fact, from these agreements. [00:20:08] Speaker 05: And they, therefore, would lack standing to challenge them. [00:20:10] Speaker 02: And your response to their contention that the settlements effectively, in a non-public manner, forfeit from them the benefits of their conservation efforts is what? [00:20:24] Speaker 05: Well, again, Your Honor, [00:20:27] Speaker 05: Because the agreements specifically preserve the agency's discretion to decide whether or not those conservation efforts render listing unwarranted, they haven't forfeited the benefits of those efforts. [00:20:39] Speaker 05: The service can still take them into account when it's making its decision about whether or not to list the species. [00:20:44] Speaker 05: And again, the Shelton Pocket Gopher is a perfect example of where those types of efforts were taken into consideration and ultimately, in part, led to a decision that listing was not warranted. [00:20:55] Speaker 05: Your Honor, I'd just like to close with the fact that these species at issue here were candidates for listing for over a decade. [00:21:04] Speaker 05: In the final analysis, home builders do not have standing to challenge the service's discretionary decision to allocate its resources to deciding those species' status and, more generally, to clearing out the backlog of other candidate species. [00:21:17] Speaker 05: The district court's judgment here should be affirmed. [00:21:21] Speaker 03: All right. [00:21:22] Speaker 03: Thank you, Mr. DiMessio. [00:21:25] Speaker 03: I know Mr. Peterson did not have any time left. [00:21:28] Speaker 03: We'll give you one minute. [00:21:30] Speaker 04: Participation in a completely different process is insufficient to make us whole. [00:21:35] Speaker 04: Our standing is based on the injury to conservation and other activities that are taken in a process that the service itself solicits. [00:21:42] Speaker 03: I don't think there's any question that... Can I ask you how is it a different process? [00:21:47] Speaker 03: I mean, it sounds like you're just at a later place in the process, but it's still the listing process. [00:21:55] Speaker 04: Right, but as the Kauffman Declaration is shown, and if we had discovery in the cases we were shown, when the service switches from candidate status to you're about to be listed, it throws in a whole bunch of different requirements. [00:22:08] Speaker 04: And the requirements upon listing hurt us a lot more. [00:22:14] Speaker 04: And I'll say this, we lose our property rights. [00:22:17] Speaker 04: on the day that the agreements were signed, because the service, and it's sufficient to, the service solicits this information, the service asks for it, and we have a right to have that information considered at that time. [00:22:30] Speaker 04: It's not enough to say, you know what, we will let you get another shot at this down the line. [00:22:35] Speaker 04: If they solicit information during the candidate review process, [00:22:40] Speaker 04: They have us spend all this money, set aside all this land, and then say, you know what, we've reached a different decision. [00:22:45] Speaker 04: We're changing the priority of the species. [00:22:47] Speaker 04: That harms us. [00:22:48] Speaker 04: And that's exactly what happened here. [00:22:50] Speaker 04: And it's not enough to have us give a shot. [00:22:52] Speaker 04: And they also don't have unlimited discretion. [00:22:55] Speaker 04: And that's where it emerged this question that we want to get to, whether or not they have unlimited discretion to amend the listing priority guidelines. [00:23:02] Speaker 04: I mean, the law says that they do not. [00:23:04] Speaker 04: whether or not the settlement agreements are actually an amendment of the Endangered Species Act under the APA, where we have a right to notice and comment. [00:23:12] Speaker 04: And voluntary efforts are concrete interests when made in reliance on government representations. [00:23:18] Speaker 04: And that's exactly what happened here. [00:23:19] Speaker 04: Our guys did not decide to set aside thousands of acres of land without reaching an agreement with the service on what the planning process would be. [00:23:27] Speaker 04: And it's a good thing to have species get off the list. [00:23:30] Speaker 04: The 10-year delay, because they prioritized, no species went extinct during this time. [00:23:35] Speaker 04: It's a good thing. [00:23:36] Speaker 04: And the service itself has said it benefits everyone, the species, us, and them. [00:23:40] Speaker 02: But Mr. Peterson, you talked about the limitation on their discretion to move things around on the list. [00:23:45] Speaker 02: If there were a new director of the service came in, no settlement agreements at all, just like, we're going to get this thing rolling, go ship shape, and decided to process everything much faster, are you saying that would be arbitrary and capricious, or subject to challenge, [00:24:06] Speaker 02: If this was something that, and I realize this is hypothetical, but if this is something that the service had decided as a matter of administering this program that just really wanted to tackle the backlog and move it through, you're saying that that would have been [00:24:20] Speaker 02: contrary to the statute? [00:24:22] Speaker 04: No, no. [00:24:23] Speaker 04: I'm saying that that's the way the process should work. [00:24:25] Speaker 04: It should be a public process whereby they use the information that they solicit, whereby they give the listing priorities so people can do long-term planning, so they can get the adjudication. [00:24:34] Speaker 04: A lot of these species were low on the priority because they didn't have sufficient information about them. [00:24:39] Speaker 04: our members provided that information, and we're asked to spend hundreds of thousands of dollars providing that information. [00:24:47] Speaker 04: And I get it, one species wasn't listed, but hundreds of other species were quickly listed as a result of this process. [00:24:53] Speaker 04: It fundamentally changed the speed and the process in which [00:24:57] Speaker 04: species were listed in the prior process under the CNOR, it made them show their math. [00:25:04] Speaker 04: And that's all we're asking is they have to show their math. [00:25:07] Speaker 04: The Endangered Species Act can't be run and can't be amended through settlement agreements with third parties. [00:25:12] Speaker 02: And the provision, so under my hypothetical, when the service spontaneously wants to rejigger the list and move everything really quickly, what's the provision that you're saying would require them to, as you point to it, show their map? [00:25:26] Speaker 04: Well, for example, the listing priority guidelines, we believe those have been amended. [00:25:31] Speaker 04: And that's inconsistent with the law. [00:25:33] Speaker 04: The law states that the listing priority guidelines cannot be amended without public notice and comment. [00:25:39] Speaker 04: And they've clearly been amended by the settlement agreements. [00:25:44] Speaker 03: Okay. [00:25:44] Speaker 03: Thank you, Mr. Beard. [00:25:45] Speaker 04: Thank you. [00:25:47] Speaker 03: The case will be submitted.