[00:00:01] Speaker 00:
Case number 14-5300 at L. Defenders of Wildlife at L vs. Sally Jewell in her official capacity as Secretary of the United States Department of the Interior at L, Appellants.

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State of Wyoming at L. Ms.

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Pepin for Appellants, Jewell at L. Ms.

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Jurdie for Appellants, State of Wyoming.

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And Mr. Presso for the Appellees.

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May it please the court?

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May it please the court?

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My name is Joan Pepin on behalf of the Fish and Wildlife Service.

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I'll be sharing time with Mr. Jordy on behalf of the state of Wyoming.

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At the time of the delisting rule in this case, the minimum wolf population in Wyoming was 328 wolves and 27 breeding pairs.

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That is roughly triple of the requirement of the recovery plan of 10 breeding pairs and 100 wolves.

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That Wyoming population is connected to a greater population in the Northern Rocky Mountains of over 1,700 wolves, the rest of which has already been delisted.

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Now, it was not previously delisted in Wyoming, because at that time, the Fish and Wildlife Service did not believe that Wyoming had adequate regulatory mechanisms to maintain its share of the wolf population.

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So they worked together with Wyoming and eventually came to an agreement that will provide that protection, not only to get to the minimum standard, but to provide a wide safety margin above it.

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And here's how that plan works.

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Well, maybe we might cut to the chase a little bit here.

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Sure.

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I want to be clear about the issue on what, gene flow.

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Oh.

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And this study by Von Holt, that's on JA 1044,

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The way I look at that, and I want to be clear that I'm looking at it correctly, is it's talking about Yellowstone, Idaho, and Montana.

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But it's not talking about Wyoming.

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Right, but my point is that the whole issue here is the Wyoming plan.

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and Wyoming can't take credit for what's going on in Yellowstone.

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So my only question here is this whole study.

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When I look at it, I don't see this discussion of Wyoming other than to the extent Yellowstone

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I think I can answer that.

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In order to delist the species, the Fish and Wildlife Service has defined that it is not endangered or threatened by any of the five listed factors in Section 4A.

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Can you answer my question?

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I'm trying to.

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One of those, it analyzed adequate genetic connectivity under the other factor.

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And what is required in order to delist is finding that the greater Yellowstone area population

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is genetically connected to the other populations.

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That is the recovery plant standard.

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And so my only point is, in the Von Holtz study, it looked at the other states and Yellowstone.

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but it didn't talk about Wyoming.

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Is that right or wrong as a factual matter?

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There's very significant overlap, but the recovery plan requirement for genetic connectivity, which is what we have to make sure is satisfied in order to make the

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agencies finding that it exists proper is that there be connectivity to the greater Yellowstone area.

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It doesn't have to be within the Wyoming areas.

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So is the Fish and Wildlife's position that if the wolves go from Yellowstone elsewhere, that satisfies any genetic obligations Wyoming may have?

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The concern in this case has been migration into the Greater Yellowstone area rather than out of it.

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From Wyoming, I thought.

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No, actually they need to be coming... From where?

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Mainly from Idaho.

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They could come from Montana, but as a matter of practical... What's all this chatter about how you get out of Wyoming through the mountains and all to get into the park so you can have this?

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I thought we were focusing on what's going to happen to the wolves in Wyoming in terms of is there any genetic

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The distinction between Yellowstone and the rest of Wyoming applies to the population management.

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Wyoming must maintain 10 breeding pairs and 100 wolves in those areas under its wildlife jurisdiction.

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So it's irrelevant, is the question, whether any wolf goes from Wyoming outside the Yellowstone Park area.

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for purposes of genetic connection?

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If it went from Wyoming into Yellowstone, that would not count as migration.

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It has to be from another population, Idaho or Montana, in order to bring in that diversity from another subpopulation that the recovery plan calls for.

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Now, you raise the question of the mountains.

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So we're only talking about migration from Idaho and Montana into Wyoming?

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That's been the disputed issue, yes.

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And I should say not into Wyoming, but into the greater Yellowstone area.

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Not the park, but the greater Yellowstone area.

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If I could ask you a question.

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I just want to understand, the Wyoming plan is talking about maintaining this minimum, all right?

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That's the population objective.

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The genetic objective is separate.

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So I understand, but I thought the whole issue here was, or one of the issues was whether Montana's plan was adequate to maintain this minimum.

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And part of that consideration was, was there going to be this genetic connection?

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But you're telling us, and I'm not suggesting you're not right, but I just want to be clear about this because I was surprised when I turned to the von Holt study that everybody's talking about, and it doesn't talk about Wyoming other than Yellowstone National Park.

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The recovery plan requires two separate things.

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It requires a population of at least 10 in 100 in Wyoming.

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That one is done by the state level.

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It also requires adequate genetic connectivity between subpopulations.

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That one is done at the population level.

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Where are these subpopulations?

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What state?

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Well, they all cross state lines, all three of them do.

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So we are focusing on wolves that are in Wyoming, outside of Yellowstone, as well as inside Yellowstone.

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Is that correct?

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All of the wolves in Wyoming, plus quite a lot of wolves near the borders of Wyoming, are part of the Greater Yellowstone Area's subpopulation.

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You're confusing me, and I'm trying to get clarity here.

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I look at the Von Holt study.

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It's talking about Idaho.

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It never mentions Wyoming except in connection with Yellowstone.

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And I thought the Fish and Wildlife Service was approving a plan that Wyoming has to maintain this minimum that the Fish and Wildlife Service says is necessary

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And are you telling me that's totally irrelevant?

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Because the plan itself says at JA1085, managing wolves, this is a Wyoming plan, managing wolves above the minimum recovery level will enhance the likelihood for genetic connectivity through natural dispersal and immigration.

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So at least Wyoming thinks that genetic connectivity is relevant.

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And the way the Fish and Wildlife Service has defined Wyoming's obligation, it excludes Yellowstone and the Indian reservation.

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It does not exclude Yellowstone National Park from the genetic connectivity part of the recovery standard.

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The genetic connectivity part of the recovery standard is managed at the population level.

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Here's what I don't understand.

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If that's true, then why does Wyoming have any obligation to do anything with regard to genetic connectivity when the Fish and Wildlife Service acknowledges that the state has no control

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over what goes on in Yellowstone or

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the Indian reservation.

[00:10:02] Speaker 03:
Well, two reasons, Your Honor.

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First of all, because in order for this population to be delisted and revert to state management, it has to be not endangered or threatened.

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And one of the recovery goals is genetic connectivity between the other populations in Idaho and Montana and the Greater Yellowstone area, which is not exclusively in Wyoming, but it's mostly in Wyoming.

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And so.

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And now I'm getting to the point that's raised by the plaintiffs, as you undoubtedly realize.

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When the Fish and Wildlife Service relies on this von Holtz study and then doubles its expectations in terms of the number of wolves,

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in terms of whether Wyoming's plan meets the minimum of one effective migrant per generation.

[00:11:04] Speaker 06:
All right, one every four years.

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How can it rely on a study that doesn't even address Wyoming?

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The migration does not need to be into Wyoming.

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In order for the plant to be satisfied and the survival of this species to be assured, the migration needs to be into the greater Yellowstone area.

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That could be in Wyoming, outside Yellowstone.

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It could be in Yellowstone.

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It could be in Montana or Idaho, but near Yellowstone.

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All of that.

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So the Fish and Wildlife Service does not care whether any wolf in Wyoming

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is able to get into Yellowstone or Idaho or Montana?

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Or whether any wolf from Montana, Idaho, or Yellowstone can get into Wyoming?

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What we care about is that wolves from Montana and Idaho can get into the Greater Yellowstone area

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which may or may not mean Wyoming, if they migrate to the western areas.

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On page 1034, I believe it's 1030, 1037 of the Joint Appendix is a map of the packs in the area.

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And the greater stone, you can see the shaded area in the northwest corner of Wyoming is Yellowstone National Park, which is where all the wolves of Wyoming initially were when they were reintroduced there.

[00:12:38] Speaker 06:
So when hunters want to go to Wyoming to hunt,

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The only place they're going to find wolves is in Yellowstone National Park.

[00:12:46] Speaker 03:
No.

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No.

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Can you see all the packs that are outside Yellowstone National Park?

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And they cannot be hunted.

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That's my point, counsel.

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Yes.

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We are looking at the wolves in Wyoming outside of Yellowstone National Park.

[00:13:00] Speaker 03:
Absolutely.

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Any breeding by these wolves with these wolves accomplishes genetic exchange.

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And so the Fish and Wildlife Service relies on a study in terms of projecting for purposes of genetic connectivity that doesn't deal with these wolves.

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and what's going on in Montana, other than in Yellowstone National Park.

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That survey is not limited to Yellowstone National Park.

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It discusses the greater Yellowstone area, which is the name for basically this, all of these ones.

[00:13:35] Speaker 06:
So on your map, on page 1037,

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I see the state of Wyoming, I see Yellowstone, and I see another other sightings of wolves.

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Now, what do you define as the greater Yellowstone area?

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And where will I find that in the record?

[00:14:02] Speaker 03:
We actually do have a map of that and boy do I wish I had that number for you right now.

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It's in the same volume of the appendix a little earlier and I will have that by rebuttal.

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But basic answer to your question is do you see there's sort of a big cluster here, a cluster here and a gap in between?

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The part that's down here, that's the Greater Yellowstone area.

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That's not a disputed fact at all.

[00:14:26] Speaker 06:
Is it the gray area?

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It's just where all the black dots are.

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Those black dots are wolf packs and all those wolf packs are in them.

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So all wolves in Wyoming are in Yellowstone National Park?

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No.

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I'm sorry.

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Yellowstone National Park is the dark shaded area.

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That's a national park.

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There is a subpopulation called the Greater Yellowstone Area, and that is all of these wolves that have migrated out from Yellowstone Park over the last 20 years, plus the ones that are still in it.

[00:15:00] Speaker 03:
And that is the subpopulation into which we need to have at least one migrant per generation, and that is what the Von Holtz study did study, the Greater Yellowstone Area.

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That is not disputed, but that's appropriate.

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That's the recovery plan standard.

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They haven't the plaintiffs have not objected to the use of these population areas rather than state boundaries for managing migration.

[00:15:21] Speaker 06:
Well, maybe counsel for the state can help me here because when I looked at this study, I don't see any reference to anything other than Yellowstone National Park.

[00:15:30] Speaker 06:
I don't see this reference to this greater

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Yellowstone National Park.

[00:15:34] Speaker 03:
I see.

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I would like to point out, though, that the services finding on genetic connectivity did not rely solely on the Bonholt study.

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It also relied on the Jimenez study, which tracked radio-collared wolves.

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And what that study showed is that between 2002 and 2007, there were four radio-collared wolves that entered the Greater Yellowstone area, not all of them the park.

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to ask you a little bit about this whole question about the buffer zone or the safety margin and just so we don't go down you know a frolic and detour I'm talking about the question whether Wyoming has an obligation to manage for above the 110 threshold putting aside

[00:16:16] Speaker 04:
the Greater Yellowstone area where the Fish and Wildlife Service has also said that provides its own kind of buffer.

[00:16:24] Speaker 04:
And indeed that's how Fish and Wildlife, as I understand it, distinguished between the level of wolf population that Wyoming is managing for as distinct from Idaho and Montana, which are managing for 115, 15 rather than 110.

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So there's this dispute on the record about whether Wyoming is in fact obligated to manage for just

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Targeting 110 or manage above 110?

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And my first question to you is, in your view, does Wyoming have a duty to manage above 110?

[00:17:00] Speaker 03:
As I explained in our second brief, it's kind of a tricky question because they are and they aren't and I will explain.

[00:17:08] Speaker 03:
The actual obligation is to maintain at least, not greater than, at least 10 breeding pairs and 100 wolves.

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However,

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As a matter of practical reality, there is no way to make sure that you can meet that standard, that you will have at least 10 in 100, unless you aim higher, because things can happen.

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There is illegal take.

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There is natural mortality.

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Things can happen.

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And so if you want to be sure of having at least 10 in 100, you have to aim higher.

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How much higher?

[00:17:37] Speaker 03:
Well, the record shows that for the first year, Wyoming's plan was to have 15 breeding pairs and 170 wolves just within its portion, plus Yellowstone.

[00:17:49] Speaker 04:
That's what Wyoming was aiming for?

[00:17:51] Speaker 03:
That's what Wyoming was aiming for.

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That's in the rule.

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And that is on page Joint Appendix 111.

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That's what they were going to do in 2012.

[00:18:02] Speaker 03:
The record obviously doesn't show what they were going to do after that.

[00:18:07] Speaker 04:
What mechanisms are available to them to execute that management strategy?

[00:18:13] Speaker 04:
How do they have authority to do that?

[00:18:16] Speaker 03:
Well, they consider hunting season, and they can restrict that or end that if that is bringing the numbers down too low.

[00:18:24] Speaker 03:
They have authority to issue lethal tag permits for wolves in an area where chronic wolf depredation is occurring, but they also have not only the authority but the statutory duty

[00:18:35] Speaker 03:
to cancel existing permits and stop issuing them if it could cause them to not make their population management objective of 10 in 100.

[00:18:48] Speaker 04:
If it could cause them to not make their management objective, that makes them much smaller puffer, doesn't it?

[00:18:52] Speaker 04:
You have to be in a situation where

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you, the state, thinks if we issue these permits, which we are obligated by our state law to issue where people are harassed or threatened by wolves, their property, their livestock, we have an obligation to issue them unless

[00:19:16] Speaker 04:
Unless this authority to stop doing so is triggered.

[00:19:21] Speaker 04:
That authority to stop doing so, as I understand it, is triggered only where the next permit issued could put Wyoming below.

[00:19:30] Speaker 04:
Not 170.15, but 110.

[00:19:33] Speaker 04:
Am I wrong?

[00:19:34] Speaker 03:
I think so, and Wyoming thinks so, too, according to what they've said.

[00:19:39] Speaker 03:
It's not how I read the brief.

[00:19:41] Speaker 03:
Well, they say they don't have a legal obligation to maintain a buffer.

[00:19:45] Speaker 03:
That's different than saying they won't do it.

[00:19:46] Speaker 03:
They have said they will do it.

[00:19:47] Speaker 04:
The question is, if they've said voluntarily they will do it, as I understand it, the way this was briefed is a little bit of a red herring, because the question is not, well, maybe one question is whether they have a legal obligation to manage above.

[00:20:00] Speaker 04:
If they don't have a legal obligation to manage above, then where do they have

[00:20:03] Speaker 04:
the duty, which is what kicks off their power.

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to restrict?

[00:20:11] Speaker 03:
Because they have the duty to absolutely make positively sure that they're going to have 10 and 100.

[00:20:15] Speaker 03:
And if in their judgment, as it apparently was the first year, that requires aiming for 170 wolves and 15 breeding pairs, then they have the discretion under the statutory language of the Wyoming statutes to say, if this could, if this might bring us down below the buffer we have decided to manage for, then that could

[00:20:37] Speaker 03:
that would cut into our buffer and that could cause us to go below our minimums if enough bad things happen that they have to make allowances for.

[00:20:43] Speaker 04:
I don't think they can say if this might bring us below the buffer we've decided to manage for, if by that you mean anything other than 110.

[00:20:52] Speaker 03:
No, the buffer they've decided to manage for is higher.

[00:20:55] Speaker 03:
For the first year, we can call it five and 70.

[00:20:58] Speaker 03:
If they think they need that in order to be able to maintain an absolute commitment to 10 and 100, then yes, they have the discretion, and they have interpreted their laws this way, and Fish and Wildlife Service reasonably interpreted them this way as well, they have the discretion to stop issuing permits if it's going to eat away the buffer, because then you have no safety margin left.

[00:21:18] Speaker 04:
Where in Wyoming law is that?

[00:21:20] Speaker 04:
I can ask Miami if you don't have that.

[00:21:23] Speaker 03:
It would take me a while to find it for you.

[00:21:25] Speaker 03:
I'm sure Mr. Chardy could answer that much more effectively.

[00:21:28] Speaker 06:
Well, it's set out, I mean, in one general sense in the addendum, and it's very general.

[00:21:33] Speaker 06:
And that's the criticism of it.

[00:21:35] Speaker 06:
But at least the Fish and Wildlife Service of JA87 was satisfied, given the staffing that the state has, that this flexible

[00:21:50] Speaker 06:
management plan was adequate.

[00:21:54] Speaker 06:
That unlike Montana and Idaho where Fish and Wildlife Service required a 50% because of Yellowstone and the Indian Reservation, they pointed out Wyoming had no

[00:22:08] Speaker 06:
ability to control what goes on there so that its plan had to be very different.

[00:22:14] Speaker 06:
And I was a little surprised given what the documents at JA, both the plan and the addendum say that the state submitted to the Fish and Wildlife Service on which it relied for Wyoming to tell us it had no obligation to maintain a buffer.

[00:22:37] Speaker 06:
above the 100.

[00:22:39] Speaker 03:
Well the question in the delisting case here, the Fish and Wildlife Service made a factual finding that Wyoming could and would

[00:22:46] Speaker 03:
meet its obligation, which was to maintain 10 and 100.

[00:22:49] Speaker 03:
I understand that.

[00:22:50] Speaker 06:
And that's my reference to JA 87.

[00:22:53] Speaker 06:
All I'm saying is Wyoming's brief is telling us something a little different.

[00:22:57] Speaker 06:
And that leads me to some concern about how firm is this commitment when the legal representative of the state, presumably, will advise the officials of the state in accordance with the representations made in its brief to this court.

[00:23:16] Speaker 03:
Well, I think Wyoming has only said that it's not a legal requirement.

[00:23:19] Speaker 03:
That doesn't mean it isn't a necessary, practical requirement to carry out what is a legal requirement, which is maintaining 10 and 100.

[00:23:27] Speaker 06:
You don't read Wyoming's brief to be pretty clear on this point?

[00:23:33] Speaker 03:
I think they have said that the Fish and Wildlife Service did not demand a buffer, but they also said that they will manage a buffer because it's the only way to accomplish what they do have to accomplish.

[00:23:44] Speaker 04:
I'm not sure that helps you, because I hear you to be saying... Could I just finish my question?

[00:23:49] Speaker 06:
I'm sorry, go right ahead.

[00:23:50] Speaker 06:
So when the Fish and Wildlife Service says we decided against requiring Wyoming to provide a specific numeric buffer, but

[00:24:03] Speaker 06:
quote, while Wyoming will and must maintain a buffer to consistently meet its minimum management targets, quote, unquote, that's all on J87.

[00:24:16] Speaker 06:
For Wyoming's brief to say they don't have any legal obligation.

[00:24:20] Speaker 03:
Well, I think exactly what that says, they must to meet their minimum management target.

[00:24:27] Speaker 03:
It's not they must because we say so.

[00:24:29] Speaker 03:
It's they must because that's what it takes to get the job done that they've committed to legally.

[00:24:34] Speaker 06:
I read the service as making it very clear there is a requirement to have a buffer.

[00:24:39] Speaker 06:
You don't read it that way?

[00:24:41] Speaker 03:
No.

[00:24:41] Speaker 03:
The service was very clear that they made a factual finding that there will be a buffer.

[00:24:45] Speaker 03:
The requirement is to have 10 in 100, and the service made a factual finding that they will do that.

[00:24:52] Speaker 03:
And one of the factual findings supporting that finding is we believe they will manage for a buffer.

[00:24:57] Speaker 03:
And the evidence supporting that finding is... No, no, no.

[00:25:00] Speaker 06:
Just let me be clear.

[00:25:00] Speaker 06:
You don't think that the agency is requiring the state to maintain a buffer?

[00:25:09] Speaker 06:
As I said to Judge Pillard, it's complicated because... It's not complicated when you look at what the agency said it was doing, it seems to me.

[00:25:18] Speaker 06:
Now, if the agency wants to take a different position and say what it said here is not exactly what it meant, that's fine and you can tell me that.

[00:25:29] Speaker 06:
No.

[00:25:29] Speaker 06:
But it says we're not going to impose the way we did for Idaho and Montana 50% buffer

[00:25:38] Speaker 06:
but we're going to have this management flexibility.

[00:25:41] Speaker 03:
Right, they will have the management flexibility.

[00:25:43] Speaker 03:
And it does not have to be numeric, which is what you're referring to there.

[00:25:49] Speaker 03:
What they said on page 87, and then they said it again on page 98, is that

[00:25:55] Speaker 03:
They must maintain 10 in 100, and in order to do that, they will have to, but this is a practical have to, not a legal have to, manage for a buffer.

[00:26:05] Speaker 03:
If you look on page 98 of the Joint Appendix, they said, we conclude that Wyoming will maintain a buffer.

[00:26:13] Speaker 03:
Both the statute and the regulation require maintaining, quote, at least these minimum population levels, and two, meeting the statutory and regulatory mandate

[00:26:22] Speaker 03:
will require managing above this goal so that uncontrollable sources of mortality.

[00:26:27] Speaker 06:
So if Wyoming were to report or the agency were to determine that in fact Wyoming is maintaining the minimum, that would suffice to meet its legal obligation.

[00:26:45] Speaker 06:
I mean, just hypothetically, a ridiculous hypothetical.

[00:26:49] Speaker 06:
Wyoming decides there'll be no hunting in the state.

[00:26:51] Speaker 06:
There'll be no lethal takes.

[00:26:53] Speaker 06:
There'll be, you know, all these permits are repealed or, you know, et cetera.

[00:26:58] Speaker 06:
And so this will just be a quiet zone for wolves.

[00:27:05] Speaker 03:
Well, I think that would cause the population to stay high.

[00:27:09] Speaker 03:
But if they were to if they were to change their mind, break their word, and if our finding was incorrect, then that's what the post delisting monitoring plan is for.

[00:27:18] Speaker 03:
And if Wyoming changes management direction in a way that impacts the wolves, then that triggers a status review automatically.

[00:27:25] Speaker 03:
However, the service reasonably found evidence that they would

[00:27:30] Speaker 03:
keep their word and manage for a buffer.

[00:27:32] Speaker 03:
The evidence for that was, first of all, the plan and the addendum in which they very clearly stated that they would.

[00:27:38] Speaker 03:
Secondly, on page 98, again, of the Joint Appendix, they analyze Wyoming's incentives, and the other states' incentives, too.

[00:27:45] Speaker 03:
All of the states have managed above the minimum that they must in order to ensure that they can, and because they want to maintain management flexibility so that they can control animals that are having conflicts with livestock.

[00:28:00] Speaker 03:
They'd have to cancel those permits if it got too close to the edge, so they don't want to get close to the edge.

[00:28:05] Speaker 03:
That's been the experience with Montana and Idaho.

[00:28:08] Speaker 03:
it was planned for in Wyoming, and it's reasonable to conclude that these states want to preserve their management flexibility and want to prevent the risk of relisting, which would happen if they did not meet their legal obligations.

[00:28:21] Speaker 03:
And then finally, there is the common sense that, I just read you, that there is no way to be sure that you're going to have 10 in the 100 unless you aim above it, because something can always happen that you can't control.

[00:28:32] Speaker 03:
So those are, that's the evidence supporting the finding.

[00:28:37] Speaker 06:
When Wyoming argues in its brief today that having a management buffer for the state's minimum management targets was not a condition for delisting, you agree with that?

[00:28:58] Speaker 03:
It was a practical but not legal requirement.

[00:29:01] Speaker 03:
I'm sorry I can't give you a more clean answer.

[00:29:04] Speaker 03:
I don't know.

[00:29:04] Speaker 06:
I'm the state.

[00:29:05] Speaker 06:
I'm trying to figure out what I'm supposed to do.

[00:29:07] Speaker 03:
They're supposed to manage for a buffer.

[00:29:08] Speaker 03:
They said they would.

[00:29:10] Speaker 03:
They've committed to.

[00:29:10] Speaker 03:
And there's no other way for them to do what they're legally intending to do.

[00:29:13] Speaker 06:
And so when the agency says, look, we told Idaho and Montana that they had to maintain buffers of 50%, but because of why Yellowstone and the Indian reservation, we're not going to do that.

[00:29:27] Speaker 06:
with Wyoming.

[00:29:29] Speaker 06:
So there's no legal obligation.

[00:29:30] Speaker 06:
I just need to be clear.

[00:29:32] Speaker 03:
This buffer is akin to in Wyoming and Idaho in order to make sure they keep 15 and 150.

[00:29:37] Speaker 03:
They have to aim above that too.

[00:29:39] Speaker 03:
And they have they have stayed well above it.

[00:29:41] Speaker 06:
Um, and this is not my point of view that if I'm an agency official in Wyoming trying to figure out what I need to do, how many permits I can issue during what seasons and all

[00:29:55] Speaker 06:
If I don't have any obligation to maintain a buffer, I'm going to make one kind of decision.

[00:30:01] Speaker 06:
Whereas if I have an obligation to maintain a buffer, that's another kind of decision.

[00:30:06] Speaker 06:
I just want a little clarity here.

[00:30:09] Speaker 03:
The obligation to maintain a buffer is found in the management plan, which governs Wyoming's actions.

[00:30:15] Speaker 03:
They follow their own management plan.

[00:30:17] Speaker 03:
It's found in the addendum, which explains how they will do things.

[00:30:20] Speaker 03:
And it follows from their obligation.

[00:30:23] Speaker 04:
I understand that argument.

[00:30:25] Speaker 04:
In the 2017 listing rule, the one that was later enjoined, it was an express condition of Fish and Wildlife Service's approval that Wyoming's wolf management plan be legally authorized.

[00:30:36] Speaker 04:
by Wyoming statutes.

[00:30:37] Speaker 04:
Did the Fish and Wildlife Service ever explain why that was dropped this time around?

[00:30:42] Speaker 03:
Actually, there were a lot of legal changes between 2007 and the present.

[00:30:47] Speaker 04:
For one thing, Wyoming's regulations... The question was, is there somewhere in the record that I could look to where there's an explanation why that was dropped?

[00:30:53] Speaker 04:
And I understand there were lots of changes, and you can explain those to me if you'd like, but my question is, is there an explanation?

[00:31:01] Speaker 03:
Since so much of it did become regulation, I don't think it was discussed.

[00:31:04] Speaker 03:
It was a non-issue for the 2011.

[00:31:07] Speaker 04:
Become state regulation?

[00:31:09] Speaker 03:
I'm sorry?

[00:31:10] Speaker 03:
Yes.

[00:31:11] Speaker 03:
Many of the things that were not adequately regulated in 2007, and I'm not sure exactly what one you're referring to, but they became regulated in the interim.

[00:31:21] Speaker 03:
Wyoming and the Fish and Wildlife Service worked together and negotiated a whole package of measures, some of which were then enacted into law and codified into regulation.

[00:31:29] Speaker 04:
Can you give me a sense of what fish and wildlife thinks is an adequate buffer?

[00:31:35] Speaker 04:
I mean, just a sense.

[00:31:37] Speaker 04:
Is it two wolves or is it 20 wolves?

[00:31:39] Speaker 04:
Is it?

[00:31:41] Speaker 03:
I'm sorry, I don't.

[00:31:42] Speaker 03:
I don't have any information.

[00:31:43] Speaker 03:
I know that they were obviously satisfied because they went ahead with the delisting with Wyoming's plan to manage for 170 wolves and 15 breeding pairs.

[00:31:53] Speaker 04:
And that's not something that the state and Fish and Wildlife have discussed in your, to your awareness.

[00:32:01] Speaker 03:
What's the- No, I don't actually know of any information on that.

[00:32:05] Speaker 03:
It wouldn't be something like, it wouldn't necessarily be something like the five and 50 you see in the other states.

[00:32:10] Speaker 03:
Because in Wyoming, that fail-safe margin is provided by Yellowstone.

[00:32:15] Speaker 03:
No, I understand that.

[00:32:17] Speaker 03:
Okay.

[00:32:17] Speaker 04:
I understand that.

[00:32:18] Speaker 03:
Thank you.

[00:32:20] Speaker 04:
Do you have a sense, and maybe this is a question for Wyoming.

[00:32:23] Speaker 04:
How much of the wolf take each year is from hunting permits and how much is from defensive property actions?

[00:32:33] Speaker 03:
Well Obviously the hunting only takes place when the state has management control I believe they set a quota of 52 for that first year that they were going to have management and but you know wolf populations there's been hunting seasons in

[00:32:49] Speaker 03:
Montana and Idaho every year since delisting in 2011.

[00:32:53] Speaker 03:
And Idaho's population has gotten bigger.

[00:32:57] Speaker 03:
The wolves are very prolific breeders.

[00:33:00] Speaker 03:
And so even when they're being controlled by hunting and by lethal take permits and by control actions, that doesn't mean they can't withstand that mortality.

[00:33:10] Speaker 03:
It might make them grow slower or not grow, but it doesn't necessarily bring the population down.

[00:33:17] Speaker 03:
You also asked the number of control actions.

[00:33:20] Speaker 03:
I believe during the years of this rule, it was around 40, around 40 a year, both under state and federal management.

[00:33:28] Speaker 04:
140?

[00:33:30] Speaker 03:
No, 40.

[00:33:33] Speaker 04:
So just give me the, you can hunt, you can do anything in the non-trophy areas.

[00:33:41] Speaker 04:
Hunt, kill, I mean wolves.

[00:33:44] Speaker 03:
It's basically not regulated in the predator area.

[00:33:46] Speaker 04:
In the trophy areas is where you need to hunt?

[00:33:48] Speaker 04:
And you can't hunt in the park?

[00:33:51] Speaker 04:
You can't hunt in the park.

[00:33:52] Speaker 04:
So when we're talking about hunting permits, we're just talking about in the trophy area.

[00:33:55] Speaker 03:
The trophy game area.

[00:33:56] Speaker 03:
And the state has the ability to close the season any time they see fit, to restrict where.

[00:34:01] Speaker 03:
It's not like they have to say everywhere in the trophy game season you can hunt.

[00:34:05] Speaker 03:
They can say, this is a dispersal corridor.

[00:34:07] Speaker 03:
We're going to protect it here.

[00:34:08] Speaker 04:
Right.

[00:34:08] Speaker 04:
A lot of control over the hunting.

[00:34:09] Speaker 04:
That's discretionary.

[00:34:11] Speaker 03:
Right.

[00:34:11] Speaker 03:
They have a lot of regulatory authority in that area.

[00:34:13] Speaker 04:
Property permits.

[00:34:14] Speaker 04:
Also, we're talking about protection of property.

[00:34:17] Speaker 04:
regulation we're talking about, also the trophy area, right?

[00:34:21] Speaker 03:
Yes, because you don't need that authority in the predator area.

[00:34:25] Speaker 03:
But, you know, the predator area, the service recently found, is not a significant portion of the species range because it's bad habitat.

[00:34:32] Speaker 03:
They don't live there.

[00:34:33] Speaker 03:
All right, well, unless the court has any further questions, I'll ask that you reverse the district court.

[00:34:40] Speaker 06:
Thank you.

[00:34:41] Speaker 03:
Wait a minute, Mr. Dirty.

[00:34:43] Speaker 06:
So, counsel for the state of Wyoming.

[00:35:04] Speaker 02:
Good morning, may it please the court, Jay Jerdy for the state of Wyoming.

[00:35:10] Speaker 02:
Recognizing there have been several questions about the buffer, I'd like to start with a hypothetical that I think will state the state's position on this.

[00:35:23] Speaker 02:
If wolves were to be delisted in Wyoming today, there would be a five-year minimum post-delisting monitoring period.

[00:35:32] Speaker 02:
Yeah, during each of those postal listing monitoring years where the ESA still applies, the state did not successfully manage for the buffer that it's provided for in its management plan and its rule.

[00:35:45] Speaker 02:
yet still manage for 10 breeding parent 100 wolves right on the number.

[00:35:49] Speaker 02:
Each of the five years, there would be no basis for the Fish and Wildlife Service to invoke any type of remedial action because the state will have fulfilled its legal obligations for maintaining its share of the recovered wolf population.

[00:36:03] Speaker 02:
I think it's really significant when you look at what was required for delisting or what was the condition for delisting to look at the discussions that went on between the service and the state leading up to the 2012 delisting.

[00:36:17] Speaker 02:
We have a letter in the record where the service initially proposed this different allocation of wolf responsibility, getting away from the 15 breeding pair and 150 will statewide and going to the five in Yellowstone, 50 or five and 50 in Yellowstone, 10 and 100 in Wyoming.

[00:36:39] Speaker 02:
the letter from Governor Meade that has the points of agreement, but also, you know, very explicitly laying out what the service thought needed to be done so that there could be the listing of wolves in Wyoming.

[00:36:49] Speaker 02:
You follow that letter up with the letter from Governor Meade

[00:36:55] Speaker 02:
And the points of agreement very clearly spell out what Wyoming was committed to doing and was required by the service to do in order to achieve delisting of the wolves.

[00:37:06] Speaker 02:
Nowhere in the federal government's proposal and nowhere in the points of agreement after we had several discussions to come to those points of agreement does it specifically say that we have to have a management buffer for the state's share of at least 10 breeding pair and at least 100 wolves.

[00:37:22] Speaker 02:
as was mentioned during the first part of the argument today.

[00:37:26] Speaker 02:
The management buffer is a tool or a technique to achieve an objective, and the objective is we don't want to drop below 10 breeding pair or 100 wolves.

[00:37:37] Speaker 02:
And so it is an entirely accurate statement to say it wasn't legally required to achieve delisting, but it is a practical requirement because if the state of Wyoming does not manage for the buffer,

[00:37:52] Speaker 02:
can't be assured that it can fulfill its own statutory obligation.

[00:37:58] Speaker 04:
What is the practical buffer that you're managing?

[00:38:02] Speaker 02:
Right now, it's a narrative buffer that's, to use a phrase that sometimes gets people curious.

[00:38:09] Speaker 02:
It's based on adaptive management.

[00:38:11] Speaker 02:
Each year, the department will assess what has gone on the previous year, look at what the wolf population numbers are in Wyoming outside of Yellowstone.

[00:38:19] Speaker 02:
And for clarity purposes, I'll say Yellowstone a lot and not mention the Windenburg Indian Reservation, but those two are combined.

[00:38:26] Speaker 02:
But they'll look at the numbers outside of Yellowstone.

[00:38:28] Speaker 02:
They'll look at the different ways wolves were taken in the prior year.

[00:38:33] Speaker 02:
And they'll assess the entire situation.

[00:38:36] Speaker 02:
And they will determine what the buffer will be for the year going forward.

[00:38:42] Speaker 02:
My guess is that they'll do that primarily in the context of setting the hunting regulation for wolves.

[00:38:50] Speaker 04:
And so it's an annual process?

[00:38:52] Speaker 04:
It is.

[00:38:56] Speaker 04:
And do you have any figures that are different from what Fish and Wildlife has said about the sort of roughly proportion, slightly more than half of take recently has been from hunting and a little bit less than half of take has been from property protection?

[00:39:11] Speaker 02:
I don't have different numbers, although I think it's important to distinguish when you're talking about non-hunting take.

[00:39:18] Speaker 02:
You have administrative take, which would be the department doing it.

[00:39:21] Speaker 02:
You do have the lethal take permits.

[00:39:23] Speaker 02:
You have take in defense of private property under Wyoming statute 233-115.

[00:39:29] Speaker 02:
You know, it's my understanding that

[00:39:33] Speaker 02:
During the two years that wolves were most recently delisted, that there was very limited lethal take, I don't think there was any defensive property take, at least not that I can recall.

[00:39:45] Speaker 02:
And so the primarily, the majority of the take that occurred was through hunting.

[00:39:50] Speaker 02:
It was around 50 wolves were allowed to be hunted, or that was the quota for the first year.

[00:39:58] Speaker 02:
The second year was half that.

[00:40:00] Speaker 02:
It was around 24.

[00:40:03] Speaker 04:
What is the authority for the state to control wolf take when it is concerned that it might be approaching the informal, practical buffer that the state uses?

[00:40:19] Speaker 02:
Well, with hunting, they simply suspend hunting or don't have a hunting season.

[00:40:24] Speaker 02:
With the lethal take permits, you have to look to the lethal take provisions in 23.1.304 and the corresponding regulation.

[00:40:32] Speaker 02:
It doesn't, neither the statute nor the regulations specifically mention the buffer that mentioned the population objectives of at least 10 breeding current, at least 100 wolves.

[00:40:42] Speaker 04:
So let me just try to be really clear about my concern and maybe you can help me allay it.

[00:40:48] Speaker 04:
The state says it's informally managing above, well above the 10, 100 threshold.

[00:40:56] Speaker 04:
The state statute requires permits to be given in cases at least of potential risk to property harassing and threatening of livestock and domestic animals requires that they be given under the circumstances stated.

[00:41:13] Speaker 04:
The state, I believe you cited,

[00:41:17] Speaker 04:
general authority within that section that the state has where it has a duty to act otherwise, it may suspend.

[00:41:29] Speaker 04:
And my question is, if you don't have a legal duty at any place above 110, how does that authority to trump your own required permit authority come into play?

[00:41:46] Speaker 04:
And I guess that's about the legal question and a practical question.

[00:41:49] Speaker 04:
Let's say during the year, before that end of your inventory, things are getting...

[00:41:54] Speaker 04:
low.

[00:41:56] Speaker 04:
More people hunting.

[00:41:57] Speaker 04:
Maybe there's some illegal hunting.

[00:41:59] Speaker 04:
There's a lot of, you know, there's this scenario in the briefs about baiting.

[00:42:03] Speaker 04:
Maybe some people do decide to do baiting.

[00:42:05] Speaker 04:
The wolves are getting into a position where you want to stop even permitting for people who are claiming that their livestock is harmed.

[00:42:17] Speaker 04:
Do you have authority to do that?

[00:42:18] Speaker 04:
And if so, where do you get it?

[00:42:23] Speaker 02:
Again, looking at the different types of take, I think it's very clear they can suspend hunting whenever they want to.

[00:42:29] Speaker 04:
That's very helpful.

[00:42:32] Speaker 02:
Sure.

[00:42:32] Speaker 02:
And so then you go to lethal take permits.

[00:42:36] Speaker 02:
Now, I will concede that the way that the provision, sub-provision on lethal take permits was written in the statute is not the model of clarity.

[00:42:45] Speaker 02:
There were discussions about what that language needed to look like in order for the service to be comfortable, that we have the authority to suspend lethal tape permits and in effect mitigate the shall that you're referring to when you say that you believe there's a mandatory duty.

[00:43:00] Speaker 04:
But that language... Where is that authority?

[00:43:02] Speaker 04:
Because you say that, I'm just having trouble finding it.

[00:43:04] Speaker 04:
I read it yesterday, and I'm just having trouble finding it today.

[00:43:06] Speaker 02:
Sure.

[00:43:06] Speaker 02:
Your Honor, if you look at Wyoming statute 23-1304, and you go back to subsection... Which brief, which appendix, which... I believe that that is in the appendix to the state's reply brief.

[00:43:33] Speaker 02:
Because I don't see particularly well these days I had to put a non brief version so I could read it more It should be to our opening

[00:44:09] Speaker 02:
Well, what I'm seeing in our principal brief right now, it's actually the 2012 Session Law for the changes to 23-1304.

[00:44:19] Speaker 02:
But if you look at A-21 to the final principal brief,

[00:44:29] Speaker 02:
And the session was actually, I think, the better document to look at in terms of seeing what we actually did in 2012.

[00:44:37] Speaker 02:
Prior to 2012, it did talk about shall promulgate rules and regulations that allowed for the issuing of lethal tape permits.

[00:44:48] Speaker 02:
And it said shall be issued as long as, and then it talked about some specifics.

[00:44:52] Speaker 02:
And actually, what it was is the old management number.

[00:44:59] Speaker 02:
what was agreed to between the service and state was that language would be added that says the removals authorized by lethal take permits shall be issued as long as the removals authorized by those permits could not reduce the number of gray wolves below 10 breeding pairs or a total of 100 wolves

[00:45:23] Speaker 02:
within the state and outside of Yellowstone National Park and the Wind River Indian Reservation.

[00:45:27] Speaker 02:
So when you look at the phrase, could not reduce the numbers, the idea was that the could not reduce was open-ended enough that it gave the department the authority in regulation to

[00:45:45] Speaker 02:
Well, they were required to adopt the regs.

[00:45:48] Speaker 02:
So in the regs, they could put language in that allowed them to stop the issuance of lethal pay permits if it looked like the numbers could drop below 10 and 100.

[00:46:08] Speaker 02:
It doesn't specifically mention the buffer, but the buffer would be a part of that consideration because the buffer would be in place to assure that we don't get to 10 and 100.

[00:46:16] Speaker 02:
And so if we have a situation... That I don't see.

[00:46:20] Speaker 04:
That I don't see.

[00:46:21] Speaker 04:
I mean, if here your buffer is the could, it is the scope of the could and nothing more, because that's the only authority that you have to cancel.

[00:46:31] Speaker 02:
Well, I would say the buffer is at least 10, at least 100 in the actual management objectives, and the at least on both of those numbers was

[00:46:39] Speaker 02:
included to give the flexibility to the department.

[00:46:43] Speaker 02:
Here it's the state's rating of the could not reduce below.

[00:46:46] Speaker 02:
Everything's in play and it's at the discretion of the department to determine whether or not there's a real danger of the numbers dropping below 10 and 100.

[00:46:55] Speaker 04:
You can't tell me today what you operate for if there's a Wyoming

[00:47:01] Speaker 04:
department sense of, okay, when we see it coming in at 120 and 12, we say that's a danger zone, and that could drop below.

[00:47:11] Speaker 04:
You don't have any benchmark like that.

[00:47:13] Speaker 02:
A specific numeric benchmark?

[00:47:15] Speaker 04:
Yeah, informal benchmark.

[00:47:16] Speaker 02:
No, that would be at the discretion of the department in the moment to determine.

[00:47:21] Speaker 02:
But this is consistent with wildlife management.

[00:47:26] Speaker 02:
Wildlife management is not an exact science, as you mentioned with the number of your scenarios and your hypothetical.

[00:47:32] Speaker 02:
There can be a lot going on out there in terms of anticipated and unanticipated take of wolves.

[00:47:39] Speaker 02:
And so what the statute and the corresponding regulation on lethal take permits gives the department is the discretion to size it up.

[00:47:49] Speaker 02:
and decide, okay, we think because of X, Y, or Z, depending upon what's going on out there, we need to stop issuing lethal paperments.

[00:47:57] Speaker 02:
Now, a significant consideration that may well be- That's actually really helpful.

[00:48:02] Speaker 04:
So tell me the tools you have.

[00:48:03] Speaker 04:
You're managing, you're managing in good faith above,

[00:48:06] Speaker 04:
that's going to cause you to be relisted, but you want to do it.

[00:48:11] Speaker 04:
And you can stop.

[00:48:13] Speaker 04:
Hunting permits, you can limit the number of hunting permits.

[00:48:15] Speaker 04:
You can, if there is a potential, if it could fall below 10-110, you can stop these kind of permits for protection of property.

[00:48:23] Speaker 02:
What else?

[00:48:23] Speaker 04:
What are the tools?

[00:48:25] Speaker 02:
Well, in terms of 23-3-1-15, which is defense and take of private property, as I've argued in our response reply brief,

[00:48:35] Speaker 02:
The Game and Fish Commission has the authority to shut that takeoff, although that is not expected.

[00:48:41] Speaker 04:
That's even the unpermanent take?

[00:48:42] Speaker 02:
Correct.

[00:48:45] Speaker 04:
What's the authority for that?

[00:48:47] Speaker 02:
The authority for that comes from 231302 Romanet29.

[00:48:53] Speaker 02:
There was a language added to 231302.

[00:48:59] Speaker 02:
I'm going to turn it over to you, Your Honor.

[00:49:07] Speaker 02:
I was thinking you asked the question about the deployment or

[00:49:11] Speaker 02:
The plan or the scheme must be legally authorized.

[00:49:13] Speaker 02:
We're referencing the 2007 delisting notice.

[00:49:17] Speaker 02:
I believe this language was put in perhaps in direct response to that.

[00:49:22] Speaker 02:
It basically says that the commission has the authority to do whatever it needs to do to fulfill its duties under the Game and Fish Act with respect to Gray Wolf Management.

[00:49:31] Speaker 04:
You had a residual, like a general statutory authority somewhere that you cited.

[00:49:37] Speaker 04:
What is that general statutory authority?

[00:49:39] Speaker 02:
I believe that's 23-1302 or 29.

[00:49:42] Speaker 02:
That's the powers provision of the commission.

[00:49:45] Speaker 02:
So what we did by adding that language to the commission's powers is, in effect, give them this overriding authority to make sure that they could take whatever step they need to take to manage for at least 10 and at least 100.

[00:49:59] Speaker 02:
And again, this all goes back to the long history of the back and forth between the service, and this was something that the service was insistent upon at the time it was put in, and Wyoming put it in.

[00:50:12] Speaker 02:
Now, at the time it was put in, obviously it wasn't specifically directed at at least 10 and at least 100.

[00:50:17] Speaker 02:
It was directed at the management goals at the time, which were lower.

[00:50:23] Speaker 04:
So the difficulty that I have is that the commission has

[00:50:28] Speaker 04:
obligate has power to control take measures that are necessary to carry out the Commission's duties.

[00:50:41] Speaker 04:
And that's the difficulty.

[00:50:42] Speaker 04:
If you don't have a duty to manage above, but you just think it's good practice, I'm not sure that power is as useful to you as you are suggesting it might be in terms of actually being able, assuming that you are willing and eager to manage above in the way that you're comfortable.

[00:51:02] Speaker 02:
The commission has a duty not to go below.

[00:51:04] Speaker 02:
Right.

[00:51:04] Speaker 02:
And the only practical way to accomplish that is to manage above.

[00:51:08] Speaker ?:
OK.

[00:51:12] Speaker 02:
I see the red light's been on for a while.

[00:51:15] Speaker 02:
If there are no further questions, I will.

[00:51:18] Speaker 06:
Could you answer my question about this Von Holt study?

[00:51:22] Speaker 02:
If the Von Holt study only references Yellowstone, what I can tell you, Your Honor, is it's been Wyoming's understanding all along with genetic connectivity that all of the wolves living within Wyoming, including Yellowstone National Park, because the vast majority of Yellowstone National Park is in Wyoming, and you can identify which part of Yellowstone is in Wyoming.

[00:51:42] Speaker 02:
For genetic connectivity purposes, any evidence of genetic connectivity

[00:51:48] Speaker 02:
that arises in Yellowstone Park counts towards the state's goal of achieving genetic connectivity.

[00:51:56] Speaker 02:
I would also point out that the state has committed to the genetic connectivity and its rules, and we did the seasonal expansion of the Trophy Game Management Zone to facilitate dispersal rules, primarily from Idaho into Wyoming, but the door swings both ways.

[00:52:14] Speaker 02:
Okay, thank you.

[00:52:15] Speaker 02:
Thank you, Your Honor.

[00:52:18] Speaker 06:
All right, Council for Appellees.

[00:52:26] Speaker 01:
May it please the Court, Timothy Pressel for the Appellees.

[00:52:29] Speaker 01:
I'd like to turn directly to the issue of the buffer.

[00:52:32] Speaker 01:
The government said that the question whether the buffer must be, whether the buffer is a requirement is a tricky question, but it's not.

[00:52:43] Speaker 01:
The service said in the delisting rule that Wyoming must manage for a buffer above its minimum commitment to 10 and 100.

[00:52:50] Speaker 01:
And the reason for that is that Wyoming has a uniquely hostile management framework for wolves.

[00:52:57] Speaker 01:
No other state designated wolves as predatory animals subject to unregulated killing by any means year round throughout 83.5% of the state's territory except Wyoming.

[00:53:08] Speaker 01:
Wyoming also has the other legal take authorizations that the court has already discussed this morning.

[00:53:14] Speaker 01:
The consequence of those take authorizations is that the Wyoming wolf population under state jurisdiction is effectively like a civ, constantly losing individuals to unregulated take or take through various other authorizations.

[00:53:27] Speaker 01:
In order to achieve 10-100, therefore, you have to have more than 10-100.

[00:53:33] Speaker 01:
Now, there's been a lot of discussion this morning about how many more.

[00:53:36] Speaker 01:
And I think that underscores a key problem here.

[00:53:40] Speaker 01:
Wyoming hasn't told us.

[00:53:41] Speaker 01:
The service didn't specify.

[00:53:43] Speaker 01:
And so the question is, what is this buffer going to be?

[00:53:48] Speaker 01:
Is it a buffer that Wyoming deems adequate?

[00:53:50] Speaker 01:
Is it a buffer the service deems adequate?

[00:53:52] Speaker 01:
Is it a buffer that the best available science and the peer review would have deemed adequate?

[00:53:57] Speaker 01:
There is no answer.

[00:53:58] Speaker 01:
And at this moment, they have not told you, and they cannot tell you the answer to that question.

[00:54:04] Speaker 01:
when we have something so critical, such a centerpiece of the state's regulatory framework that's left utterly undetailed.

[00:54:13] Speaker 01:
the agency had no rational basis to find that there was an adequate regulatory framework to protect wolves after delisting.

[00:54:20] Speaker 04:
What about the argument Mr. Gerdy made, which I gather really does dovetail with the argument that Ms.

[00:54:24] Speaker 04:
Huff made, which is when they say, when Fish and Wildlife said Wyoming must manage above in order to meet this target, it wasn't speaking legally, it was speaking practically, and anybody who undertakes to stay above 110,

[00:54:42] Speaker 04:
is just necessarily gonna be managing above and that they know that.

[00:54:48] Speaker 04:
It's like if you know you have to stop before you hit a brick wall, you know you have to decelerate and nobody has to regulate the point at which you have to start putting on the brakes.

[00:54:59] Speaker 01:
It's not that simple.

[00:55:01] Speaker 01:
If the history of the dealings between the Fish and Wildlife Service and Wyoming illustrate anything is that they have not seen eye to eye about what is necessary for wolf conservation and the service has repeatedly had to go back to Wyoming and demand more of them.

[00:55:15] Speaker 01:
often prodded, frankly, by litigation from public interest groups to take those steps.

[00:55:19] Speaker 01:
And yet now we're in this position where we have this faith-based approach that says, the service says, well, we think Wyoming will do this adequately.

[00:55:27] Speaker 01:
For a decade or more, we've had to prod Wyoming at every step down the trail, but we think now they'll sprint ahead on their own.

[00:55:32] Speaker 01:
That's not a rational approach given the history and the record of this case.

[00:55:36] Speaker 04:
We do generally think there's some room for comedy between sovereigns and that the federal government cannot and is not in the business of micromanaging everything that the state agency does.

[00:55:45] Speaker 04:
So with the framework and the undertakings of Wyoming and the backstop of further scrutiny, the question is, what about this?

[00:55:53] Speaker 04:
Is arbitration nutritious?

[00:55:58] Speaker 01:
even acknowledging the potential for comedy between the federal government and the state, the government still has to make a rational determination that there were adequate regulatory mechanisms under 4A1D.

[00:56:06] Speaker 04:
And why is it not adequate to say they've undertaken to manage for 110?

[00:56:11] Speaker 04:
And they've acknowledged that in order to do that, one has to, as a practical matter, aim higher, and they have tools, and they say they have authority to do that,

[00:56:25] Speaker 04:
not that's I mean, I'm trying to purchase, as you know, is a low bar.

[00:56:29] Speaker 01:
It is a low bar.

[00:56:30] Speaker 01:
But here the service relied on the buffer to deal with the generalized threat of human cause mortality, which the service repeatedly says had to be adequately regulated.

[00:56:42] Speaker 01:
Not only did they say it had to be adequately regulated in general, but they said that regulation had to be adequate to compensate for uncontrollable sources of mortality.

[00:56:52] Speaker 01:
That is the purpose that the buffer serves in this framework.

[00:56:56] Speaker 01:
That's precisely what it does.

[00:56:58] Speaker 01:
And that's precisely the thing the service said had to be regulated, and yet the buffer is non-regulatory.

[00:57:04] Speaker 01:
But this is not simply about the omission of a regulatory protection that needed to deal with human-caused mortality.

[00:57:13] Speaker 01:
It's also about

[00:57:14] Speaker 01:
a counterweight to the hostile regulatory mechanisms in Wyoming's framework that otherwise would not have passed muster under the service's analysis.

[00:57:23] Speaker 04:
Well, they've changed a lot of their regulation.

[00:57:26] Speaker 04:
And what are you pointing to now that would be under the delisting hostile?

[00:57:30] Speaker 01:
Well, they've changed a number of things, but a lot of things haven't changed, Your Honor.

[00:57:34] Speaker 01:
And the service repeatedly relied upon the buffer to deal with what would otherwise be a threat from portions of the framework that have not changed.

[00:57:42] Speaker 01:
specifically, with respect to the predator zone, the service said that would have been a serious concern, but it is not a concern because Wyoming is going to manage for a buffer over the minimum population.

[00:57:55] Speaker 04:
As to the defense of- Give me a page- I'm sorry.

[00:57:58] Speaker 01:
It's page 55587 of the Federal Register notice.

[00:58:01] Speaker 01:
I don't have the joint appendix page right here.

[00:58:03] Speaker 01:
That's fine.

[00:58:04] Speaker 01:
With respect to the defense of property killing, they said this framework will not imperil wolves

[00:58:11] Speaker 01:
provided Wyoming manages for a sufficient buffer above the minimum population to withstand the source of mortality.

[00:58:18] Speaker 01:
That's 555.85.

[00:58:21] Speaker 01:
They said Wyoming's monitoring framework, the peer review, has criticized because it has a threat to mask population declines.

[00:58:30] Speaker 01:
But that's okay, provided Wyoming manages for a sufficient buffer above minimum populations.

[00:58:35] Speaker 01:
That's 555.56.

[00:58:38] Speaker 01:
repeatedly the service turned to the buffer, not just to deal with the generalized threat that human caused mortality is the key issue for the species, but they counted on it as the counterweight to the regulatory, enforceable, mandatory provisions of Wyoming's framework that would otherwise threaten the species.

[00:58:55] Speaker 01:
And yet the only thing that's standing out there to counter these

[00:58:59] Speaker 01:
Inforcible threats to the wolves is this non-regulatory, unenforceable, voluntary buffer.

[00:59:05] Speaker 01:
The agency cannot... Well, that's not quite right.

[00:59:07] Speaker 04:
I mean, there's the Greater Yellowstone area.

[00:59:09] Speaker 04:
There is the permanency of the trophy zone.

[00:59:13] Speaker 04:
There is the hiking up from the previous undertaking of, I think, of 77 to 110.

[00:59:22] Speaker 04:
And what if Fish and Wildlife had said, buffer, that's on you, other than the Yellowstone area buffer, 110 permanent dung will take it.

[00:59:34] Speaker 04:
Would you still be here?

[00:59:35] Speaker 01:
Well, just to be clear, the service certainly looked at the points that Your Honor has enumerated, but notwithstanding all those, they said you have to have 10 and 100.

[00:59:47] Speaker 01:
It's not an interchangeable thing.

[00:59:48] Speaker 01:
If you have these other things, you don't need 10-100.

[00:59:50] Speaker 04:
I'm saying if they said you have 10-100, you have the Yellowstone area, you have permanency of the trophy zone, you have the seasonal addition, if they had not had this whole confusing back and forth about the buffer and whether it's literally obligated or not, whether they relied on it or not, if that had just been not part of the case,

[01:00:12] Speaker 04:
and I recognize that it was.

[01:00:14] Speaker 04:
But if in an opposite part of the case, and they were here today defending the delisting proposal based on that, your position is?

[01:00:22] Speaker 01:
that the delisting would have been unlawful because at that point, you don't have the buffer to counteract the predator zone.

[01:00:28] Speaker 01:
You don't have the buffer to counteract the defense of property killings.

[01:00:31] Speaker 04:
You have the Yellowstone buffer.

[01:00:33] Speaker 01:
But the service never took the position that the Yellowstone buffer was in any way a substitute for the 10 and 100, which necessitated more than 10 and 100.

[01:00:44] Speaker 01:
So I mean, the service's position was never that the Yellowstone population meant you didn't have to have more than 10 in 100 within the areas under Wyoming's control.

[01:00:52] Speaker 01:
You had to have the Yellowstone population, and then you had to have the 10 in 100 plus a buffer in the areas under Wyoming's control.

[01:00:59] Speaker 01:
And the reason for that is, Wyoming's got all these other authorizations that are draining away the population and going to prevent you from achieving 10 in 100 unless you manage for more than that.

[01:01:08] Speaker 01:
And yet, the critical promise to manage for more than that is nowhere nailed down in a regulatory commitment.

[01:01:14] Speaker 01:
It's left to this voluntary approach.

[01:01:17] Speaker 04:
But doesn't it just emanate from the requirement to manage for 110?

[01:01:22] Speaker 04:
That's what they're saying.

[01:01:23] Speaker 04:
They're saying the end is clear means that's for us.

[01:01:27] Speaker 01:
Well, I mean, the peer review looked at this and one of the peer reviewers said what Wyoming has committed to could be satisfied by 11 breeding pairs and 101 wolves, which is no meaningful buffer at all.

[01:01:39] Speaker 01:
And so clearly there's a range of opinions on what's an adequate buffer.

[01:01:45] Speaker 01:
Right now we're in a trust us mode.

[01:01:47] Speaker 01:
The Endangered Species Act is not a trust us statute.

[01:01:51] Speaker 01:
It calls for the service to consider whether there are adequate regulatory mechanisms.

[01:01:55] Speaker 01:
Those regulatory mechanisms in this case would have been inadequate, but for the buffer, and yet the buffer is not regulatory.

[01:02:05] Speaker 01:
So the service is counting on this voluntary assurance to make acceptable mandatory enforceable aspects of this framework.

[01:02:16] Speaker 01:
That's the problem.

[01:02:22] Speaker 01:
The other thing I think that's worth noting here, Your Honor, is this court has some familiarity with the services policy for evaluating conservation efforts as a result of the Dune Sage Rush lizard case that was recently decided.

[01:02:37] Speaker 01:
That policy does not apply to delisting decisions.

[01:02:40] Speaker 01:
The government argues it applies by analogy.

[01:02:42] Speaker 01:
Even in the context of those kinds of unenforceable efforts that are the subject of that policy, the service has insisted on quantifiable parameters to determine that those kinds of policies would be effective.

[01:02:55] Speaker 01:
quantifiable parameters, not faith-based trust-us approach.

[01:03:00] Speaker 01:
So here we are in a situation where the service can't even rely on that policy because it only applies to listing decisions, but the service has gone to a place that that policy wouldn't let it go.

[01:03:11] Speaker 01:
It has gone to a place of relying on something that's unquantified, utterly unquantified, and nobody can tell you what it will be.

[01:03:18] Speaker 01:
And yet that's the linchpin of this framework.

[01:03:20] Speaker 01:
That's the problem the district court perceived.

[01:03:23] Speaker 01:
That's the problem that is at the heart of the regulatory mechanisms analysis in this case.

[01:03:30] Speaker 01:
I do want to address, unless the court has other questions on that issue, I do want to address Judge Rogers' question about the Von Holtz study, because I think that's sort of been left lingering.

[01:03:41] Speaker 01:
Judge Rogers, the Von Holtz study is the best available science on the question of

[01:03:50] Speaker 01:
examination of genetic material to determine the level of genetic exchange into the Yellowstone population.

[01:03:57] Speaker 01:
You're absolutely right, it's the Yellowstone population.

[01:04:00] Speaker 01:
But the bulk of the Yellowstone population is in Wyoming.

[01:04:03] Speaker 01:
And as a matter of fact, the only effective migration, meaning successfully breeding migration that has occurred into the Yellowstone population has been in Wyoming, south of Yellowstone National Park, originating in central Idaho.

[01:04:19] Speaker 01:
Von Holt does not specify itself the level of that effective migration.

[01:04:25] Speaker 01:
And you have to turn to another document by the author of Von Holt, Dr. Stoller, at JA 936 to see that when you parse out the Von Holt study results, what you get is a documentation of 0.42 effective migrants per generation into the Yellowstone population.

[01:04:46] Speaker 01:
Not one, but 0.42.

[01:04:49] Speaker 01:
And so it is correct that Von Holt talks about Yellowstone, but it's also the case that the Von Holt results, when they're more refined in this subsequent email, show that what we're really talking about is immigration that's happened in Wyoming, and it's come from central Idaho.

[01:05:07] Speaker 01:
And it's not, the documented results do not meet the services minimum requirement for genetic exchange to justify U.S.

[01:05:13] Speaker 06:
care.

[01:05:13] Speaker 06:
Well, you heard counsel say, well, look at the M&S study.

[01:05:17] Speaker 01:
I'm sorry?

[01:05:18] Speaker 06:
Council told me to look at the him and his study.

[01:05:21] Speaker 01:
The him and his study.

[01:05:23] Speaker 01:
The him and his study similarly does not document sufficient genetic exchange.

[01:05:26] Speaker 01:
In each of these circumstances, the service is relying on extrapolation to take inadequate documented results and turn them into results that satisfy the services own delisting standard.

[01:05:40] Speaker 06:
There's nothing wrong with extrapolation.

[01:05:43] Speaker 06:
All right.

[01:05:44] Speaker 06:
So part of your argument, I thought, was, well, even if you double it, you still don't get to one.

[01:05:51] Speaker 01:
Exactly.

[01:05:52] Speaker 06:
But I'll go back and look at this eminent study to see if there's anything more there.

[01:06:01] Speaker 01:
Your Honor, as the Court said, there is nothing wrong, per se, with extrapolation.

[01:06:06] Speaker 01:
But it has to be informed extrapolation.

[01:06:08] Speaker 01:
It can't be guesswork.

[01:06:10] Speaker 01:
And what we have here is an extrapolation from Jimenez, for which there is no scientific support cited, and then an extrapolation from von Holt's analysis that defies the advice of one of the von Holt authors who worked closely with the service on this analysis.

[01:06:29] Speaker 01:
Not only, as Your Honor points out, doubling the von Holt result doesn't achieve the minimum.

[01:06:34] Speaker 01:
That's one problem.

[01:06:35] Speaker 01:
But there's a whole other layer of problem here, which is that

[01:06:39] Speaker 01:
Dr. Stoller says, I don't think that the best available information justifies this kind of doubling approach that you've taken.

[01:06:48] Speaker 01:
The service doesn't disclose that and just doubles it in order to quite conveniently, it more than doubles it, frankly, to quite conveniently arrive at a one migrant per generation documentation.

[01:06:59] Speaker 06:
Well, it says maybe more study would be appropriate here.

[01:07:07] Speaker 06:
It's difficult to track these wolves for all kinds of different reasons that they spell out so.

[01:07:12] Speaker 06:
All we can do is.

[01:07:16] Speaker 06:
We've got recovery and so we're looking down the road and we have all these commitments.

[01:07:21] Speaker 01:
Well, first of all, I think the important point is we don't have recovery unless we have one migrant per generation.

[01:07:27] Speaker 01:
And the best available science in the form of those two studies doesn't show we have that.

[01:07:32] Speaker 01:
But beyond that, it would be one thing if the service had said the best available science doesn't show we have the minimum standard, so more study is appropriate, as your honor suggests.

[01:07:42] Speaker 01:
But that's not what they did.

[01:07:43] Speaker 01:
They said the science doesn't show that we have the minimum standard.

[01:07:47] Speaker 01:
And they said, so we're going to turn around and delist.

[01:07:49] Speaker 01:
That's the problem.

[01:07:50] Speaker 05:
Okay, but you have 4-2, you know, which is maybe not quite half of that.

[01:07:57] Speaker 05:
And you also have Stoller saying there probably is some underestimation, right?

[01:08:01] Speaker 05:
And then you also have the, I think everybody accepts that radio control doesn't tell us the whole story because not all of them, you know, the generation is four years.

[01:08:16] Speaker 05:
and if younger wolves are more likely to move, then you've also kind of got to somehow include that in the way that you do this.

[01:08:28] Speaker 05:
So, what in your view then would be

[01:08:33] Speaker 05:
a reliable number.

[01:08:35] Speaker 05:
In other words, does it have to be a study that says 1.5 per generation or can we accept something less than that in their considered opinion?

[01:08:49] Speaker 01:
Well, the standard is one.

[01:08:51] Speaker 01:
So I mean, if they can document or justify one, they've met their standard.

[01:08:55] Speaker 05:
But our fundamental objection.

[01:08:56] Speaker 05:
But what do you mean when you say if they can document one?

[01:09:00] Speaker 05:
In other words, it's got to be that.

[01:09:03] Speaker 05:
They can't consider that it may be underestimating.

[01:09:07] Speaker 05:
They can't consider that there are wolves that they can't track because they're not all with radio collars and so forth.

[01:09:13] Speaker 05:
So in your view, they have to be able to show

[01:09:18] Speaker 05:
through some methodology that there's at least one.

[01:09:21] Speaker 05:
Is that what you're saying?

[01:09:23] Speaker 01:
Well, I'm not objecting to the idea of extrapolation as a general matter.

[01:09:27] Speaker 01:
What we're objecting to is the idea of extrapolation based on a methodology that the very scientist whose results you're relying on has rejected.

[01:09:36] Speaker 01:
and the service sort of saying we're going to pick and choose the part of that scientist's work that we like.

[01:09:41] Speaker 05:
I'm not sure it's fair to say that he rejected it.

[01:09:45] Speaker 05:
He said it's underestimated somewhat.

[01:09:49] Speaker 05:
I wouldn't say that we could say it's double.

[01:09:54] Speaker 05:
Right.

[01:09:54] Speaker 05:
And so

[01:09:55] Speaker 05:
As I read what they say here, I think it's at 124, if I remember correctly.

[01:10:00] Speaker 05:
They basically say, this is the number we've got.

[01:10:04] Speaker 05:
Stahl says it's some underestimate.

[01:10:07] Speaker 05:
Somebody else says it might be as much as double.

[01:10:11] Speaker 05:
We don't know.

[01:10:14] Speaker 01:
Yeah, well, what Stoller objects to is doubling.

[01:10:18] Speaker 05:
Right.

[01:10:18] Speaker 01:
He says, I don't think you can justify doubling.

[01:10:20] Speaker 05:
And they do put in that he objects to that.

[01:10:23] Speaker 01:
Well, what they said is, I'm sorry, Your Honor, I have the Federal Register notice.

[01:10:29] Speaker 01:
It's 55593.

[01:10:31] Speaker 01:
What they said is, while additional analysis may be needed to determine how much of an underestimate this represents, citing Stoller.

[01:10:39] Speaker 07:
Right.

[01:10:39] Speaker 01:
They don't ever say Stoller objected to doubling.

[01:10:41] Speaker 01:
And by the way, we're more than doubling it to get to where we need to go.

[01:10:44] Speaker 01:
They never disclose that.

[01:10:45] Speaker 01:
But beyond that, Stoller says that the doubling they want to do is not based on supporting data.

[01:10:51] Speaker 01:
That's at page 937 of the joint appendix.

[01:10:56] Speaker 01:
That's what we object to.

[01:10:57] Speaker 01:
They're taking an analysis that the very scientist they're relying on says is not based on supporting data.

[01:11:04] Speaker 01:
And they're using that to determine they've satisfied a key recovery criteria.

[01:11:08] Speaker 04:
So just behind the entire challenge is clearly a lot of history.

[01:11:11] Speaker 04:
I'm not sure how and whether that bears on the decision before us today.

[01:11:23] Speaker 04:
And I guess I'd like you to say where in the record, you pointed to some places where fish and wildlife in your view thought the buffer was important in a way that to you suggest that they should have required it to be quantified.

[01:11:37] Speaker 04:
Other support for the more formalized approach that you advocate

[01:11:48] Speaker 01:
Well, I guess just one small point before I launch into that, Your Honor.

[01:11:52] Speaker 01:
You said that we were suggesting the buffer had to be quantified.

[01:11:56] Speaker 01:
I don't think we're suggesting the service had an obligation to set a number, but it had to set something other than just this open-ended trust us approach.

[01:12:05] Speaker 04:
What would it be other than a number?

[01:12:06] Speaker 01:
Well, so for example, one of the things we see in the record is there's discussion of assuring a methodology that would achieve a 95% confidence level that 10 in 100 would be maintained.

[01:12:19] Speaker 01:
They could have prescribed something like that.

[01:12:23] Speaker 04:
What does that mean to you?

[01:12:25] Speaker 01:
I'm not a biologist, and so I can't tell you what it means.

[01:12:29] Speaker 01:
I know that in the record, I think it was Dr. Mills said 15 and 150 would achieve that at that time.

[01:12:43] Speaker 01:
But clearly there are expert biologists who could apply a framework that says you have to have a 95% confidence based on the best available science, and that could be a reasonable assurance.

[01:12:56] Speaker 01:
We don't have that here.

[01:12:58] Speaker 01:
We don't know what confidence level will be assigned to the buffer management by Wyoming.

[01:13:03] Speaker 01:
What we do know is Wyoming has been comfortable with a lot higher risk than the Fish and Wildlife Service has been comfortable with.

[01:13:11] Speaker 04:
Support that.

[01:13:12] Speaker 01:
Okay, well, I mean, if we look at, for instance, you know, some of this stuff is pretty clear from the record.

[01:13:21] Speaker 01:
So, for example, the service's long-time recovery coordinator, Ed Bangs, is quoted as talking about on page 1159 of the Joint Appendix,

[01:13:34] Speaker 01:
Never underestimate the strength of the agricultural political pressure in Wyoming to always be to get as close to zero wolves outside the national parks as possible and then dare the service to relist.

[01:13:45] Speaker 01:
It's not just Mr. Bangs, we see that repeatedly in the agency's comments and the service formally noted in its delisting rule that Wyoming has consistently pushed to have absolute minimum management targets outside the national parks and to put the burden of most of the wolf population requirements on the parks.

[01:14:07] Speaker 01:
And of course, you have before you, in this briefing, the amicus brief from what's called the Wyoming Wolf Coalition, which is 24 counties and conservation districts and other governmental units and hunting groups in Wyoming who are urging you to find that the parks are the buffer and there is no requirement to do anything other than 10, 100 outside the parks, which is clearly not what the service required, but that's the position that they're taking.

[01:14:32] Speaker 01:
So it's not like we're making this up.

[01:14:35] Speaker 01:
There is a,

[01:14:36] Speaker 01:
There is a concern, but the court doesn't need to rely on that.

[01:14:41] Speaker 01:
All the court needs to rely on is that the service recognize that 10 in 100 is not achievable without more than 10 in 100 and that

[01:14:52] Speaker 01:
You need that buffer not only just to meet your minimum requirements, but also to make sure you satisfy those requirements in the face of the hostility in the predator zone, in the face of the defensive property take, the lethal take permits, and yet that key linchpin, that central piece, is not assured.

[01:15:14] Speaker 01:
Not only is it not assured, but it is unspecified.

[01:15:17] Speaker 01:
And there is no answer you can get today that will tell you what will that buffer be going forward, because it's never been a detail by the state or by the federal government.

[01:15:31] Speaker 01:
Unless there are further questions, I want to thank the court for the opportunity, and I urge you to affirm the decision below.

[01:15:38] Speaker 06:
Thank you.

[01:15:40] Speaker 06:
All right.

[01:15:41] Speaker 06:
Counsel for appellants.

[01:15:49] Speaker 03:
Good morning.

[01:15:50] Speaker 03:
First I wanted to keep my promise to get you the map citation for the subpopulations.

[01:15:55] Speaker 03:
That's the Joint Appendix 744.

[01:15:58] Speaker 03:
There is also a map of the known dispersers.

[01:16:00] Speaker 03:
These are the radio collared ones.

[01:16:02] Speaker 03:
That's on Joint Appendix at 1160.

[01:16:06] Speaker 03:
I would like to address this allegation that we've taken a faith-based approach here.

[01:16:11] Speaker 03:
That is not true.

[01:16:13] Speaker 03:
The question before the Court really is, is there adequate evidence in this rule to support the Service's finding that this population is not endangered or threatened by any of the factors in Section 4A, including the adequacy of regulatory mechanisms?

[01:16:27] Speaker 03:
And we have here a commitment to maintain the

[01:16:31] Speaker 03:
The overall requirement for the recovery plan was 10 and 100 in the state, all inclusive, including every part of the state.

[01:16:39] Speaker 03:
They've buffered that.

[01:16:41] Speaker 03:
They've added a safety margin by saying Yellowstone doesn't count.

[01:16:43] Speaker 03:
That's 100 wolves that don't count.

[01:16:46] Speaker 03:
And they have to maintain 10 and 100 outside that.

[01:16:49] Speaker 03:
Then we've got this additional management commitment by the state of Wyoming

[01:16:53] Speaker 03:
to make sure they don't reach their share, their 10 in 100, by they committed to manage above that level.

[01:16:59] Speaker 03:
The evidence supporting that finding is the plan, the management plan, the addendum, Wyoming's incentives, which are discussed on page 98 of the joint appendix,

[01:17:09] Speaker 03:
And as we discussed before, the common sense fact that you can't keep a legal commitment to maintain a 10 in 100 unless you aim higher.

[01:17:17] Speaker 03:
The only evidence against that finding that the agency pointed out is that they don't trust the state of Wyoming.

[01:17:24] Speaker 03:
But there's enough facts to support that the agency has substantial evidence to support its finding.

[01:17:29] Speaker 03:
And it was an error to overturn that on the ground that it wasn't contained in a law or a regulation.

[01:17:36] Speaker 03:
And this court's decision in Defenders of Wildlife versus Jewel, the other Defenders of Wildlife versus Jewel, the one about the Dune Sage Rush Lizard, supports us on that point.

[01:17:45] Speaker 03:
I agree with my opposing counsel that it doesn't

[01:17:47] Speaker 03:
close the deal.

[01:17:49] Speaker 03:
But still, it refutes the argument that the service may not rely on anything that is not a binding law or regulation.

[01:17:57] Speaker 03:
It refutes the argument that all evidence is divided into two categories, things that are laws and things that are speculative.

[01:18:04] Speaker 03:
This court found that the conservation continues.

[01:18:07] Speaker 04:
Ms.

[01:18:07] Speaker 04:
Pepper, you say that the agency's interpretation of the reference to regulatory mechanisms is entitled to deference.

[01:18:14] Speaker 04:
And I wonder where is the interpretation

[01:18:17] Speaker 04:
that we should look to in the record.

[01:18:20] Speaker 03:
Two places.

[01:18:21] Speaker 03:
It's on page 98 of the day.

[01:18:25] Speaker 03:
At 98, they talk about, they use the words regulatory framework, but it's really the words regulatory rather than the word mechanism that's in dispute here.

[01:18:34] Speaker 03:
The plaintiffs maintain that it can only include binding laws and regulations, and the service, Wyoming maintains that it unambiguously includes documents produced by regulatory agencies about how they will

[01:18:49] Speaker 03:
incorporate and implement the regulations.

[01:18:52] Speaker 03:
And we take the middle view that it's ambiguous.

[01:18:54] Speaker 06:
No, you say it's absurd.

[01:18:56] Speaker 06:
He's saying the agreement would be absurd if you couldn't consider the statement right.

[01:18:59] Speaker 03:
We say and agree that the term is ambiguous.

[01:19:01] Speaker 03:
But I'd like to just point out that the argument that the plan is a regulatory mechanism is one completely independent argument of why we think the district court erred.

[01:19:11] Speaker 06:
The other argument, which is supported by- But let me just be clear.

[01:19:15] Speaker 06:
When Judge Pillard asked you for a record site,

[01:19:18] Speaker 06:
of what interpretation of regulatory mechanisms we should defer to.

[01:19:26] Speaker 06:
You cited her to a page where you acknowledge this discussion of regulatory frameworks, which is a much broader concept than what is put in issue by the plaintiffs.

[01:19:40] Speaker 03:
So do you have a better site?

[01:19:44] Speaker 03:
Perhaps I didn't explain this one enough.

[01:19:46] Speaker 03:
But let me just first say, on page 98, basically its response is 39 and 40 in the rule.

[01:19:53] Speaker 03:
And so that's Joint Dependence 98 and 100.

[01:19:56] Speaker 03:
But the dispute between the parties is, does regulatory mean only laws and regulations?

[01:20:03] Speaker 06:
No, they're talking about sub-factor D. Yes.

[01:20:06] Speaker 06:
That's what I understand.

[01:20:09] Speaker 06:
And I know you dispute it, but they look to all these dictionaries that, you know, a regulatory mechanism, that whole concept is incompatible with non-enforceable voluntary commitments.

[01:20:29] Speaker 03:
And our position is that the term regulatory is ambiguous.

[01:20:33] Speaker 06:
It can mean law or regulation, but Congress didn't say that.

[01:20:37] Speaker 06:
Where will I find?

[01:20:39] Speaker 03:
Well, you know, the issues have obviously sharpened through briefing to a point that goes beyond what the rule says.

[01:20:43] Speaker 06:
With all due respect, this is a statutory requirement.

[01:20:47] Speaker 03:
Yes, and it was satisfied.

[01:20:48] Speaker 03:
They made findings.

[01:20:49] Speaker 03:
Whether or not you count the management plan as a regulatory mechanism, it was still... Council, I know you don't want to answer this question, but it's important.

[01:20:58] Speaker 06:
If the agency has told us how they're interpreting this as distinct from finessing the issue.

[01:21:07] Speaker 03:
The explanation

[01:21:10] Speaker 03:
which I guess you'll just have to decide whether it satisfies your standards for an explanation, but it is on 98 and 100.

[01:21:19] Speaker 07:
Let's see.

[01:21:22] Speaker 03:
They explain, first of all, because it's an answer to a question saying you shouldn't count things that aren't binding.

[01:21:26] Speaker 03:
some of them even said you shouldn't count the regulations in the statutes because they could be changed and so they say our primary consideration are the statutes and the regulations and then our next consideration are the plan that clarifies how the Wyoming Game and Fish Department intends to satisfy these statutory and regulatory mandates.

[01:21:48] Speaker 03:
And then a paragraph down they explain

[01:21:51] Speaker 03:
the requirement under Section 4B of the Endangered Species Act to base their decisions, their findings under 4A, on the best scientific evidence available after taking into account state conservation efforts.

[01:22:07] Speaker 03:
And this is all on page 98.

[01:22:09] Speaker 03:
So, you know, that is one of our two arguments is that whether or not this is a regulatory mechanism, it still has to be considered

[01:22:17] Speaker 03:
Because the statute explicitly requires that.

[01:22:19] Speaker 06:
In fairness, I didn't think that the argument that the plaintiffs were making was that you couldn't consider all these things under Section 4.

[01:22:30] Speaker 06:
Generally, the argument is when you get to D, it's not talking about efforts.

[01:22:37] Speaker 06:
It's not talking about voluntary commitments.

[01:22:39] Speaker 06:
It's talking about what are the legal obligations.

[01:22:43] Speaker 06:
All right, and at least that's their interpretation.

[01:22:46] Speaker 06:
And I just wanted to know, I understand this framework argument, but whether the agency has said that's just incorrect.

[01:22:57] Speaker 06:
And what you're reading now is, before you started talking about 4B, is what you think is the agency's best statement of its interpretation.

[01:23:08] Speaker 03:
The other one would be on page 100, the answer to response 40.

[01:23:13] Speaker 03:
As noted above, state statute, state regulations, and the Wyoming Wolf Management Plan are all important pieces of the state's post-delisting management framework.

[01:23:22] Speaker 03:
All three of these documents guide and clarify the state's approach to wolf management after delisting, and ignoring any one of these three documents would violate our responsibility to rely upon the best scientific and commercial information available.

[01:23:34] Speaker 06:
It doesn't talk about sub-factor D.

[01:23:41] Speaker 03:
Sub-factor D is not special.

[01:23:43] Speaker 03:
The requirement to base... Congress thought it was.

[01:23:46] Speaker 03:
Not more so than A, B, C, and E. No, I know.

[01:23:49] Speaker 06:
But I mean, when we're at D, Congress said, what are the regulatory mechanisms?

[01:23:55] Speaker 03:
Right.

[01:23:55] Speaker 03:
So regardless of whether this plan is a regulatory mechanism, in evaluating the... Let's suppose for the sake of argument... I don't think that's even argued, counsel.

[01:24:06] Speaker 06:
All right?

[01:24:06] Speaker 06:
With all due respect.

[01:24:08] Speaker 06:
I don't think they're saying you just shut your eyes to everything around you.

[01:24:12] Speaker 03:
All they're focusing on is what is the requirement as to D. And even if you assume that the management plan is not itself a regulatory mechanism, it's still relevant to that inquiry.

[01:24:25] Speaker 03:
And that is what they have definitely explained on 98 and 100.

[01:24:28] Speaker 03:
And that's the argument that we feel is supported by the Dunes sagebrush lizard case and just very plainly supported by the statutory language.

[01:24:35] Speaker 03:
They are required to take into account state conservation efforts.

[01:24:38] Speaker 03:
Management plan, pretty indisputably, is one.

[01:24:42] Speaker 03:
I just wanted to briefly touch on the issue of genetic diversity.

[01:24:47] Speaker 03:
Even Stahler said that it could be more than double.

[01:24:52] Speaker 03:
They found 0.42.

[01:24:54] Speaker 03:
If you extrapolate 0.42 from 30% of the population.

[01:24:57] Speaker 06:
Well, it could be 100 times more.

[01:24:59] Speaker 03:
I'm sorry?

[01:24:59] Speaker 06:
I mean, it could be 100 times more.

[01:25:02] Speaker 03:
Well, there's 30% of the population.

[01:25:03] Speaker 06:
But that's in the Stoller's email is pretty clear.

[01:25:07] Speaker 03:
He said it could be more than double.

[01:25:08] Speaker 03:
The important thing he says is, especially in recent years, the Von Holl study is not the only support for the Fertile Wildlife Services finding.

[01:25:17] Speaker 03:
They also have the Jimenez study, which goes four years later and shows a lot more immigration.

[01:25:23] Speaker 03:
And this is all on page 124 of the Joint Dependix, where they explain wolf by wolf.

[01:25:30] Speaker 03:
what they base their findings on.

[01:25:32] Speaker 03:
It's well supported in the record.

[01:25:33] Speaker 03:
It is not speculative.

[01:25:35] Speaker 03:
And to the extent that council is saying that because it only samples 20% of the wolf, well, the Stahler was 30%.

[01:25:42] Speaker 03:
The radio collared, oh, sorry, not Stahler.

[01:25:45] Speaker 03:
Von Holt was 30%.

[01:25:47] Speaker 03:
The Jimenez was 20% to 30%.

[01:25:50] Speaker 03:
It varied how many wolves they collared.

[01:25:53] Speaker 03:
to the extent they're saying that that's not good enough data, and then we should go do another study that calls 100% of the wolves.

[01:25:59] Speaker 03:
That's just contrary to the law of this circuit.

[01:26:01] Speaker 03:
I don't think anybody's arguing that.

[01:26:02] Speaker 03:
Well, he's saying that you have to absolutely show one per generation without extrapolation.

[01:26:08] Speaker 06:
Just because you have two children, I can't speculate that you really have six.

[01:26:15] Speaker 06:
What's the data?

[01:26:18] Speaker 06:
And then they point out that in the preamble for the rule,

[01:26:21] Speaker 06:
These statements are made, and there's no citation.

[01:26:25] Speaker 06:
Anyway, it's in the brief.

[01:26:27] Speaker 03:
It is.

[01:26:28] Speaker 06:
OK.

[01:26:28] Speaker 03:
All right.

[01:26:29] Speaker 03:
Thank you, Your Honor.

[01:26:30] Speaker 03:
I just want to finally point out that four out of the five peer reviewers did find that both the population and the genetic diversity were going to be satisfied by this rule.

[01:26:38] Speaker 03:
Thank you very much.

[01:26:39] Speaker 06:
Thank you.

[01:26:41] Speaker 06:
All right.

[01:26:41] Speaker 06:
Council for the State, if you wish to say anything.

[01:26:51] Speaker 02:
Thank you, Your Honor.

[01:26:52] Speaker 02:
I'd be happy to answer any questions.

[01:26:53] Speaker 02:
Otherwise, I will.

[01:26:55] Speaker 06:
All right.

[01:26:56] Speaker 06:
Thank you.

[01:26:57] Speaker 06:
All right, we'll take the case under advisement.