[00:00:01] Speaker 00:
Case number 15-5041 at L, Humane Society of the United States at L versus Sally Jewell, Secretary of the Interior at L, U.S.

[00:00:10] Speaker 00:
Sportsman Alliance Foundation at L, Appellants, State of Wisconsin at L, Ms.

[00:00:14] Speaker 00:
Pepin for Appellants, Jewell at L, Mr. Gambo for Appellants, State of Michigan at L, Mr. Lister for Appellants, Sportsman Alliance at L, and Mr. Henry for the Appellees.

[00:00:26] Speaker 06:
Good morning.

[00:00:27] Speaker 02:
Good morning.

[00:00:36] Speaker 02:
May it please the court, my name is Joan Pepin on behalf of the Fish and Wildlife Service.

[00:00:42] Speaker 02:
This case presents two important questions of statutory interpretation, both of which have been definitively construed by the agency charged with the implementation of the Endangered Species Act and are entitled to Chevron deference.

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Notwithstanding that, the district court declined to defer to the agency's interpretation on both questions.

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We believe that was an error that we're asking this court to correct.

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The first question is whether the Fish and Wildlife Service may designate and delist a distinct population segment of a species that is listed at a broader level, such as at the subspecies or the species level.

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In the Fish and Wildlife Service's view, the statute is not even ambiguous on this question.

[00:01:24] Speaker 02:
Section 4A1 of the statute, which is reproduced in the statutory and regulatory addendum at page A4, states that the Secretary shall determine whether any species is an endangered species or a threatened species because of any of five listed factors.

[00:01:44] Speaker 02:
Species is defined by statute on the previous page of the addendum as any, including a full species, any subspecies, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.

[00:02:02] Speaker 06:
I thought your argument was that you were just revising the 1978 death.

[00:02:07] Speaker 02:
Well, the district court ruled on both of those things.

[00:02:09] Speaker 06:
What's your chief argument here?

[00:02:11] Speaker 06:
I'm sorry?

[00:02:11] Speaker 06:
What is your chief argument here?

[00:02:15] Speaker 02:
I guess our chief argument is that the statute allows the Fish and Wildlife Service to designate a DPS within a broader listing for up listing, down listing, delisting, whatever is appropriate.

[00:02:28] Speaker 06:
Because it was more than a revision of the 1978 listing, wasn't it?

[00:02:32] Speaker 06:
I mean, there were some catch-all wolves that weren't included in the 78 listing that are now covered by the DPS.

[00:02:42] Speaker 02:
The wolves that are outside of Minnesota that are included in the DPS, and this is an undisputed factual matter, derived from the Minnesota population.

[00:02:51] Speaker 02:
They are the descendants of the Minnesota population.

[00:02:53] Speaker 06:
My notes are showing that the Isle Royale wolves in Michigan, they were not part of the original 1978 listing, were they?

[00:03:03] Speaker 06:
They're captured now.

[00:03:05] Speaker 06:
So in 1978, they were not part of the Minnesota wolves listing.

[00:03:11] Speaker 06:
But now you're treating them as if they are not a threat.

[00:03:15] Speaker 02:
That's a good question.

[00:03:16] Speaker 02:
And I guess that's correct that they were part of the 19.

[00:03:20] Speaker 02:
78 listing that has never been considered a significant population because it is so isolated that it is not it really hasn't even been part of the Recovery plan the recovery plan for the Minnesota wolf population Wait when you say not part of the recovery plan.

[00:03:39] Speaker 03:
What about the recovery plan or the plan for the wolves that were in the rest of the

[00:03:46] Speaker 03:
territorial US?

[00:03:47] Speaker 02:
Well, the original 1978 listing called for recovery to occur in the United States in three places.

[00:03:53] Speaker 02:
In the Western Great Lakes, which is the Minnesota population, which has now spread across several states, the Northern Rocky Mountains, which is now a mostly delisted DPS of about 1,700 wolves, and in the southwest, a population of Mexican wolves.

[00:04:09] Speaker 02:
And that population is still endangered.

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So those recovery goals, with the exception of the southwest wolves, have at this point largely been accomplished.

[00:04:19] Speaker 03:
When you first listed, the only breakout originally was the Minnesota wolf population and then the rest of the country.

[00:04:27] Speaker 03:
That's how things were divided, correct?

[00:04:29] Speaker 03:
Correct.

[00:04:29] Speaker 03:
All right.

[00:04:30] Speaker 03:
And so the rest of the country would have included these wolves in Isle Royale, correct?

[00:04:35] Speaker 02:
Yes.

[00:04:36] Speaker 03:
Okay.

[00:04:36] Speaker 03:
And those wolves have actually gone down to a dangerously low level.

[00:04:40] Speaker 03:
I think of only two left?

[00:04:42] Speaker 03:
And so, rather than protecting them, those two, and trying to bring them back from the brink of extinction, at least their extirpation for that group,

[00:04:57] Speaker 03:
you put them into the Minnesota group where they weren't before, and now you're gonna delist them when they have gone declined since they were first covered under the endangered species act.

[00:05:09] Speaker 02:
How can that be allowed?

[00:05:10] Speaker 02:
For two reasons.

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First of all, Isle Royale is a national park.

[00:05:14] Speaker 02:
Those wolves are better protected than they would be under endangered species regulation because, well,

[00:05:20] Speaker 02:
They're at least as protected.

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There's no hunting on national parks.

[00:05:24] Speaker 03:
Wait, they're at least as protected now under this delisting or is at least protected?

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It's going to continue to be a national park.

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And therefore, they will, with or without an ESA listing as threatened or endangered or delisted, they will continue to be very highly protected.

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However, the other reason why that doesn't preclude delisting is the wolves of that particular island are not a species.

[00:05:50] Speaker 02:
They are not a DPS.

[00:05:51] Speaker 02:
They could never be a DPS because it's not a significant.

[00:05:54] Speaker 03:
Well, they're members of the species.

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And the species is the non-Minnesota wolves in the US as originally listed.

[00:06:00] Speaker 02:
Okay, yes, but the Endangered Species Act doesn't preclude the loss of a pack of wolves.

[00:06:07] Speaker 02:
The Endangered Species Act is targeted at the recovery of a species, and species are defined in the act either as the whole species or a subspecies or a distinct population segment, but a distinct population segment isn't just any population.

[00:06:21] Speaker 02:
It has to be

[00:06:22] Speaker 02:
discrete, which actually the Isle Royale will certainly are, but it also has to be significant.

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And in order to be delisted, it would also have to be viable.

[00:06:31] Speaker 06:
So is your argument they're not significant to the species?

[00:06:35] Speaker 02:
Yes.

[00:06:36] Speaker 02:
Yes, and they are not a separate species.

[00:06:38] Speaker 02:
The population at issue here, the species at issue here, is the Western Great Lakes DPS, which is a population of some 4,000 wolves, primarily centered in Minnesota, Wisconsin, and Michigan, wanders about a little bit in some parts of the United States.

[00:06:55] Speaker 06:
Am I right?

[00:06:55] Speaker 06:
You've moved the Isle Royale wolves from one category to another.

[00:07:01] Speaker 06:
In 1978, they were in one category.

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Now they're categorized.

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separately.

[00:07:06] Speaker 06:
Yes, that's true.

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And the category they were in before was more highly protected than it is now.

[00:07:12] Speaker 06:
You're saying, there's a background fact here, they're in a national park, but the one side, I'm just trying to make sure I understand what you're saying.

[00:07:19] Speaker 06:
All the one side, the fact that they're in a national park.

[00:07:21] Speaker 06:
In 1978, they were protected, now less so, right?

[00:07:26] Speaker 02:
Now they are not included in the endangered species listing anymore.

[00:07:30] Speaker 02:
Yes.

[00:07:31] Speaker 02:
They are, as you noted, still fully protected by virtue of being in a national park.

[00:07:35] Speaker 03:
Would your position be the same if they weren't in a national park?

[00:07:38] Speaker 03:
It would still be the case.

[00:07:40] Speaker 03:
Can you, in regards to revising a list, sweep in a group that's

[00:07:45] Speaker 03:
The protection's not working, they're declining, so let's just sweep them in with some others.

[00:07:49] Speaker 02:
Well, again, a small little pocket of wolves is not a species, and it is possible for a species to be viable and recovered even while a group of five or ten wolves is at risk.

[00:08:03] Speaker 03:
So your answer is your position would be the same even if they weren't being protected in this national park?

[00:08:07] Speaker 02:
Yes, the potential loss of that small pocket of wools does not jeopardize the species.

[00:08:16] Speaker 04:
I have a similar question about the six states that form the surrounding area, the peripheral

[00:08:23] Speaker 04:
area, it's not entirely clear to me.

[00:08:26] Speaker 04:
I take your argument to be that the Minnesota wolves have thrived and expanded and that they are now, their core habitat now includes areas in Wisconsin and in Michigan.

[00:08:40] Speaker 04:
and that these other parts of these other six surrounding states have been included because they are within the ordinary range of these far-traveling mammals, that they may go that far around.

[00:08:55] Speaker 04:
But why would those areas, which originally were areas of wolf population,

[00:09:04] Speaker 04:
and which now I gather have little or no wolf protective regulation, be included in a delisting when it looks like from your rulemaking virtually all the wolves that have been found as having wandered in those areas have been killed.

[00:09:23] Speaker 04:
It's not clear to me why that would be part of the delisting.

[00:09:29] Speaker 02:
In order to designate a DPS for any purpose up listing down listing Because it's geographically defined it you have to give it a geographic description And that's going to vary from species to species depending on the biological habits of that species in the case of wolves They den in certain locations, but they do

[00:09:52] Speaker 02:
walk around a lot, and some of them, the boundaries, they considered doing a very closely drawn circle around the actual inhabited sites.

[00:10:00] Speaker 02:
They considered including everywhere wolves from this population had been known to go, and they thought it was most appropriate to consider kind of a middle course where wolves had been known to roam and return to the central pack and remain part of that population.

[00:10:14] Speaker 02:
That was the application of the agency's expertise in this case to define this DPS.

[00:10:20] Speaker 02:
There has to be a geographical definition because this is a statute that carries significant civil and criminal penalties and people need to be on notice where, you know, when they find a wolf somewhere, whether it's listed or not.

[00:10:31] Speaker 04:
Right.

[00:10:32] Speaker 04:
I guess I'm not still clear, notwithstanding your answer, why, in the context of delisting, the relevant unit wouldn't just be those three states where the wolves are thriving, and why one wouldn't want to be concerned about protection in areas where there's no argument that wolves have not been established.

[00:10:56] Speaker 04:
There are no wolves established in Ohio or in

[00:10:59] Speaker 02:
No, there aren't.

[00:11:00] Speaker 02:
And first of all, the portion is a map on page 1152.

[00:11:04] Speaker 02:
Yeah, we've seen it.

[00:11:04] Speaker 04:
And I know the portion is tiny.

[00:11:05] Speaker 04:
All the more so, though.

[00:11:06] Speaker 04:
So you're based on a few wolves having a backyard there that they might go into.

[00:11:12] Speaker 04:
That state is being delisted.

[00:11:16] Speaker 02:
It was really never the intention of the original listing and recovery plans for wolves to be restored in those areas.

[00:11:22] Speaker 02:
There's not suitable habitat and it was not a place where wolves could live.

[00:11:28] Speaker 02:
There's too much road density, there's too much human population, not enough prey base.

[00:11:32] Speaker 02:
Those places are not good places for wolves to live and that's why even through

[00:11:38] Speaker 02:
The last 30, 40 years of endangered species protection, wolves haven't gone there.

[00:11:43] Speaker 02:
They haven't gone into southern Minnesota because it's not good wolf habitat.

[00:11:47] Speaker 02:
They've roamed in there occasionally, but they haven't settled the way they have filled up almost all of the suitable habitat across the upper Midwest.

[00:11:57] Speaker 04:
It seems like an enormous amount of the services statutory argument turns on the focus and the scope of the original recovery plan.

[00:12:08] Speaker 04:
which I just find it hard to sort of relate that to the statutory questions before us.

[00:12:13] Speaker 04:
I understand the logic of it, that looking at the near extinction of the wolves, the service chose these three areas to focus on for recovery and actively went about repopulating in those three areas.

[00:12:29] Speaker 04:
And now we see some resurgence of wolf populations in those three areas.

[00:12:33] Speaker 04:
But the statute talks about the species as a whole and your materials and regulatory background going way back shows the

[00:12:44] Speaker 04:
protection to be nationwide and I mean I take you in sort of common sense terms to be saying well we as a scientific matter have deemed having these three populations be robust is enough and when we succeed we're gonna be done and the whole country should be delisted and so I take that to be your position it's just

[00:13:06] Speaker 04:
unclear to me why everything revolves around that choice in the recovery plan.

[00:13:12] Speaker 04:
It could have chosen five areas.

[00:13:14] Speaker 04:
There certainly is more habitat, I think, as also the regulatory record demonstrates.

[00:13:20] Speaker 04:
There's more habitat in Maine, let's say, or in Hampshire, where wolves could also thrive, but good enough.

[00:13:28] Speaker 04:
And so it's very hard for us to figure out how to administer that.

[00:13:33] Speaker 02:
Well, our statutory argument does not actually depend on the choice in 1978 to recover walls in these three historic areas.

[00:13:43] Speaker 02:
Our statutory argument is that the statute in – well, we would say unambiguous terms, but I can get into the policy and legislative history reasons justifying it if you consider it ambiguous.

[00:13:55] Speaker 02:
But in unambiguous terms, allows the Secretary to make a determination

[00:13:59] Speaker 02:
at any time or upon petition, and we did have four petitions in this case, about whether any species is an endangered species or a threatened species.

[00:14:08] Speaker 02:
This DPS, species is defined to include a DPS, and so it can, at any time, make a determination that a population within a species is not endangered or not threatened, that it is discrete, which means markedly separate from other populations of the same taxon, and that is true in this case, and that it is significant, important, that relates to the legislative history about

[00:14:33] Speaker 02:
Congress not wanting to list squirrels in a particular city park.

[00:14:36] Speaker 02:
This is a significant population of 4,000 wolves.

[00:14:39] Speaker 02:
And that it is recovered, it is thriving, and that point is very broadly held across a wide variety of interest groups.

[00:14:47] Speaker 02:
Everything ranging from NRA to the National Wildlife Federation have agreed that this population is recovered.

[00:14:54] Speaker 02:
So the statutory interpretation does not depend on the fact that they chose three as opposed to five.

[00:15:02] Speaker 02:
The statutory interpretation depends just on the terms of the statute, which gives the service, the secretary, the power to make this finding in the affirmative or in the negative.

[00:15:14] Speaker 02:
And what the district court did is held the

[00:15:16] Speaker 02:
Any species doesn't really mean any species.

[00:15:19] Speaker 02:
It means species, subspecies, and DPS only if the finding is in the affirmative.

[00:15:25] Speaker 02:
We think the statute could not support that reading.

[00:15:28] Speaker 02:
And the legislative history.

[00:15:29] Speaker 04:
Tell me a little bit about it.

[00:15:30] Speaker 04:
So I understand the proposed rule did rest a part on the notion that this was a

[00:15:39] Speaker 04:
genetically distinct species, or zoologically distinct species.

[00:15:45] Speaker 04:
And that seems to be no longer the services position.

[00:15:50] Speaker 04:
And again, when I'm thinking about how to relate what you're asking for today to the persistence of the rest of the nationwide original listing staying intact, it is

[00:16:05] Speaker 04:
puzzling to figure out in this situation why you could have a DPS within a larger listing, and indeed take chunks of the territory that was part of that larger listing, reallocate it to the Minnesota segment.

[00:16:21] Speaker 04:
I mean, maybe the right thing to do, given what you know about the genetics of these wolves, is not to treat this DPS separately, but to look again at the whole country, to fold Minnesota into the rest of the country.

[00:16:32] Speaker 02:
Well, the difficulty with that interpretation if it were applied across the board is it would take away from the service the flexibility it needs to respond to differing conditions across species.

[00:16:43] Speaker 02:
The district court held that

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I've said this several times, by listing it at the species level across the nation, the Fish and Wildlife Service sacrificed regulatory flexibility for protection.

[00:16:56] Speaker 02:
It repeatedly stated that once you've made a decision to list it at a broader level, you can only deal with it at that level.

[00:17:03] Speaker 02:
If that is true, then it not only

[00:17:07] Speaker 02:
It's not a one-way ratchet, as the district court used it.

[00:17:10] Speaker 02:
If we can't recognize a DPS within a broader listing, then if a species is listed nationwide as threatened and one population is struggling, we'd be in the same situation of not being able to say, this population needs to be dealt with separately.

[00:17:24] Speaker 02:
We need to up list this population to endangered.

[00:17:27] Speaker 06:
Do we have instances of the service doing that?

[00:17:31] Speaker 02:
I'm sorry, Your Honor, I don't know the answer to that question.

[00:17:36] Speaker 02:
But I mean, it's certainly a situation that they ought to have the flexibility to deal with if it does arise.

[00:17:42] Speaker 04:
I think that's why she said it's one-way ratchet, that you could do it in that.

[00:17:45] Speaker 02:
Well, she said both of those things.

[00:17:46] Speaker 02:
She said you can only recognize a DPS if it is endangered or threatened, which is contrary to the DPS policy itself.

[00:17:54] Speaker 02:
The service's explanation of the DPS policy, which is at

[00:18:00] Speaker 02:
Joint appendix 1123, they explain in the rule that under the DPS policy, it's a DPS if it's discrete and it's significant.

[00:18:09] Speaker 02:
That makes it a DPS.

[00:18:10] Speaker 02:
Then you determine what the conservation status is.

[00:18:14] Speaker 04:
The flip side is, I mean, you say it would take away flexibility.

[00:18:17] Speaker 04:
The flip side is, to the extent that the ESA is concerned about species viability,

[00:18:24] Speaker 04:
it would have the service ask, having defined the pertinent species, it would have the service ask when it is interacting with states and taking measures and investing its resources, what is the status of this species as a whole, vis-a-vis available habitat and populations?

[00:18:45] Speaker 04:
And we already do that, I assume, globally when you're looking at species.

[00:18:52] Speaker 04:
So there is some

[00:18:54] Speaker 04:
There's some powerful common sense to the notion that the lens should be a species-oriented lens, and therefore, once you've abandoned the notion that this Minnesota population is somehow zoologically distinct, why wouldn't you still look at the picture as a whole?

[00:19:14] Speaker 04:
And when the service says, well, look, we have achieved

[00:19:19] Speaker 04:
all of the recovery that our recovery plan accomplished, then seek to delist it.

[00:19:24] Speaker 02:
Well, they do still have to do that.

[00:19:27] Speaker 02:
The statute requires the service to reevaluate things every five years now.

[00:19:32] Speaker 02:
I'm not

[00:19:34] Speaker 04:
Even after delisting?

[00:19:36] Speaker 02:
No, no.

[00:19:36] Speaker 02:
I'm talking about listed species.

[00:19:38] Speaker 02:
The service under section 4C, which is 16 USC 1533C, the service has an obligation to periodically, and no less than every five years, determine whether a species should remain on the list.

[00:19:52] Speaker 02:
So that obligation to say, how is this listing in its entirety doing, remains there.

[00:19:57] Speaker 04:
Except you're saying that we substitute in DPS where the

[00:20:01] Speaker 04:
So in that case, you're going to be doing separate inquiries because you've

[00:20:09] Speaker 04:
these separate populations?

[00:20:11] Speaker 02:
It can do that when appropriate.

[00:20:12] Speaker 02:
The statute specifically gives the service that flexibility by defining species to include DPSs, subspecies, and species, and by giving the secretary the authority to make the determination about any species as defined in the act.

[00:20:28] Speaker 02:
Wait, first question.

[00:20:29] Speaker 06:
The question is, what was the purpose for giving the service that authority?

[00:20:32] Speaker 02:
Thanks for that.

[00:20:33] Speaker 06:
As explained in the legislature's history... Increased protection for endangered species or decreased protection?

[00:20:39] Speaker 02:
It targets protection at endangered species.

[00:20:41] Speaker 02:
When the service doesn't have to expend its resources anymore on a population that virtually everybody agrees is recovered and is thriving,

[00:20:48] Speaker 02:
then it can focus its resources on other species, other populations that need it.

[00:20:53] Speaker 02:
Because as we all know, the service does not.

[00:20:55] Speaker 02:
I mean, it has to list species as warranted but precluded sometimes.

[00:20:59] Speaker 02:
I mean, the statute actually allows for the fact that the service doesn't have enough resources.

[00:21:06] Speaker 02:
And so when a policy decision forces the agency to keep species listed that are recovered, it diverts resources away from protection.

[00:21:16] Speaker 02:
It also raises public antagonism, which makes conservation more difficult.

[00:21:20] Speaker 02:
When a species becomes listed and it can effectively never become delisted because you have to wait until it's delisted in Arizona or until it's recovered in Arizona before you can recognize this thriving recovered population in the upper Midwest,

[00:21:35] Speaker 02:
That dampens public support for species recovery, which is a problem for the Endangered Species Act.

[00:21:42] Speaker 03:
What about the problem the other direction, or the concern the other direction?

[00:21:46] Speaker 03:
And that is you have something that was a nationwide species originally and became endangered.

[00:21:53] Speaker 03:
And you could have this with other species as well, where rather than actually commit to bringing that nationwide species back from the brink,

[00:22:04] Speaker 03:
The very forces that have caused it to become endangered keep operating in a way that keep pushing it, that species into isolated pockets.

[00:22:15] Speaker 03:
And rather than, and so the differential conditions that you're flagging for a segment here are in fact the very forces of endangerment that are supposed to be combated.

[00:22:26] Speaker 03:
And when they all sort of then get corralled into little tiny corners of the US, little pockets of the US, there's at least a concern on the briefing on the other side that when you go, ah, look at those in northeast ex-state, they're all there, they've been forced there by

[00:22:46] Speaker 03:
Lack of protection for habitat, lack of protection from human activities.

[00:22:49] Speaker 03:
They've been forced there.

[00:22:52] Speaker 03:
We will draw a circle around them and declare them healthy and recovered.

[00:22:57] Speaker 03:
And then we'll look over there where they've been cornered.

[00:23:00] Speaker 03:
And we will draw a circle there and call it recovered.

[00:23:02] Speaker 03:
And voila, the species is recovered.

[00:23:06] Speaker 03:
The argument on the other side and the concerns from the district court is that you're actually giving effect to the very forces you're supposed to be combating and in doing so you're able to delist without meeting the stringent terms of the Endangered Species Act for that species.

[00:23:25] Speaker 03:
What is your answer to that concern?

[00:23:26] Speaker 02:
that the endangered species doesn't go that far.

[00:23:31] Speaker 02:
The Endangered Species Act doesn't go that far.

[00:23:35] Speaker 02:
It requires the conservation of species.

[00:23:37] Speaker 02:
The recovery of them to the point where they no longer require the protection of the Act, which under the Act means that they are not in danger of extinction by any of the five listed factors.

[00:23:48] Speaker 02:
The Act does not go so far.

[00:23:51] Speaker 02:
as to require that endangered species be restored to every place they live before westward expansion.

[00:23:57] Speaker 02:
That is not possible.

[00:23:58] Speaker 03:
Not every place, but there are things like significant range in the statute as well, and it seems to me that you can almost evade that by the combination of the segmenting here and the definition of significant range, and suddenly go, we're gonna draw this circle, we'll call that its current range, and declare it fine when in fact,

[00:24:20] Speaker 03:
It is the very forces you're supposed to be combating that have trapped them in that little corner of the U.S.

[00:24:25] Speaker 03:
How do we know

[00:24:27] Speaker 03:
And then you declare that recovery because that little group is okay on that little pocket.

[00:24:31] Speaker 03:
I mean, I keep having images of sort of polar bears stuck in little ice floes somewhere, and we'll go, well, ha, there's a successful ice floe, and there's a successful ice floe.

[00:24:39] Speaker 02:
What's to stop that?

[00:24:40] Speaker 02:
We could never delist a little isolated pocket like an ice floe or like a royal.

[00:24:45] Speaker 02:
These are large, viable, self-sufficient populations, in this case about 4,000 worlds.

[00:24:51] Speaker 02:
So the isolated pocket.

[00:24:52] Speaker 03:
But I think probably a large and viable is a function of the circle you've drawn.

[00:24:57] Speaker 03:
The original population was not measured in four figures.

[00:25:02] Speaker 03:
So could you draw a circle somewhere and go, here's 1,000.

[00:25:05] Speaker 03:
And it's a small area, so within 1,000, that's what 1,000, that's what the area will support, and that's successful.

[00:25:12] Speaker 02:
In order to be viable, a population has to have these three R's in conservation.

[00:25:18] Speaker 02:
Representation, a good genetic base of the species, resiliency and redundancy.

[00:25:24] Speaker 02:
And with a small population, and it's going to vary by species what small is and what big is, depending on their reproductive capacity and things like that.

[00:25:32] Speaker 02:
But a population has a very little population.

[00:25:36] Speaker 02:
The fear that isolated pockets will be delisted is not very realistic, because they wouldn't be viable if they were isolated pockets.

[00:25:43] Speaker 02:
Only big, viable populations like this

[00:25:47] Speaker 02:
could be a DPS and could be considered recovered and viable going forward.

[00:25:52] Speaker 02:
Now the big question that I think your Honor is getting at is, what is it that the endangered species is trying to combat?

[00:25:57] Speaker 02:
And what it's trying to combat is the threat of extinction.

[00:26:02] Speaker 02:
Not more.

[00:26:03] Speaker 02:
Not the restoration of the Old West.

[00:26:07] Speaker 02:
And in this case, in the case of the gray wolves, there is no longer a threat of extinction.

[00:26:14] Speaker 02:
And that is the basis for recovery.

[00:26:16] Speaker 03:
And under the Endangered Species Act... Does extinction mean... There's just one question I wasn't clear on because it seems to get used differently.

[00:26:22] Speaker 03:
Does extinction mean gone?

[00:26:25] Speaker 03:
completely, or we'll say for these purposes, gone completely from the United States?

[00:26:30] Speaker 03:
Or does extinction mean gone from a geographic region?

[00:26:36] Speaker 02:
Extinction means gone from the place where it is listed.

[00:26:41] Speaker 02:
So if you listed a subspecies, it would mean that subspecies is extinct.

[00:26:45] Speaker 02:
If you listed a DPS, it would mean that population is extinct.

[00:26:48] Speaker 03:
I'm sorry.

[00:26:48] Speaker 03:
So if wolves used to be, or some other creature used to be, imagine it used to be all over the United States.

[00:26:57] Speaker 03:
And then it comes to a situation where it is only located in Rhode Island, New Hampshire, Massachusetts.

[00:27:07] Speaker 03:
Those are the only places left that it's found.

[00:27:10] Speaker 03:
There's none, absolutely none anywhere else in the US, but there's a good healthy population in those three states.

[00:27:16] Speaker 03:
Do we call it extinct in California, Utah, Nevada?

[00:27:20] Speaker 03:
Because sometimes it's used that way as geographic extinction and sometimes it's not.

[00:27:26] Speaker 02:
I have heard that used, yes.

[00:27:28] Speaker 03:
What is the government's position on?

[00:27:29] Speaker 03:
When you just said the whole point is to save it from extinction, does that mean save it from extinction in the U.S.

[00:27:34] Speaker 03:
or save it from extinction in this state, that state, and the other state?

[00:27:39] Speaker 03:
Or this region, that region, the other region?

[00:27:41] Speaker 06:
Because the language of the statute suggests

[00:27:44] Speaker 06:
significant portion of its range, uses the phrase extinction through all, or a significant portion of its range.

[00:27:50] Speaker 06:
So why shouldn't we look at extinction as saying they're extinct in the Intermountain West?

[00:27:56] Speaker 06:
And so that's not acceptable.

[00:27:57] Speaker 02:
So it doesn't, it tends to conserve species that exist, not necessarily, although it can reintroduce species in places where they are extinct.

[00:28:06] Speaker 06:
Yeah, that's what happened in the Intermountain West, right?

[00:28:08] Speaker 02:
That's right.

[00:28:09] Speaker 02:
Yeah, and that population is large enough now to be mostly delisted as well.

[00:28:12] Speaker 02:
I'm sorry, I've got it.

[00:28:16] Speaker 02:
I'm talking about the geographic extinction and significant range.

[00:28:18] Speaker 04:
Extinction defined geographically or defined whole US?

[00:28:21] Speaker 04:
Yeah.

[00:28:21] Speaker 04:
And you had started to answer the significant portion of its range definition.

[00:28:25] Speaker 02:
Oh, yes, thank you.

[00:28:26] Speaker 02:
Significant portion of its range.

[00:28:27] Speaker 02:
So as the agency explained in the significant portion of its range rule, which is in the statutory and regulatory addendum at page A31 and following, the significant portion of its range language is in the definition of endangered species and in the definition of threatened species.

[00:28:50] Speaker 02:
The definition of an endangered species is one that is in danger in all or a significant portion of its range.

[00:28:58] Speaker 02:
And the services, this was the NIMS, National Marine Fisheries Service and Fish and Wildlife Service together did this published policy through Notice and Comment and interpreted that statutory language as meaning significant portion of its range refers to its current range because a species is not in danger of extinction in some place

[00:29:19] Speaker 02:
in an unoccupied portion of its historic range.

[00:29:21] Speaker 02:
So you look at the species where it is, and you ask whether it's in danger of extinction.

[00:29:25] Speaker 02:
Now, it's quite possible that by virtue of the loss of some of its historic range, it's now in too small an area to thrive, or it doesn't have enough prey base, or it doesn't have enough habitat.

[00:29:37] Speaker 02:
Certainly, the loss of historic species

[00:29:40] Speaker 02:
range as a factual matter can impact the present prospects of that species.

[00:29:47] Speaker 02:
But you don't want to restore it.

[00:29:49] Speaker 03:
Back to where this started, imagine bison or something.

[00:29:55] Speaker 03:
You should be over the entire Western United States.

[00:30:00] Speaker 03:
And if by the time they come to you, I know this is counter-historical, but imagine by the time they come to the attention of the service,

[00:30:11] Speaker 03:
There's only some left in Wyoming, and we know they used to cover the entire western United States.

[00:30:20] Speaker 03:
And you go and there are 3,000 in Wyoming.

[00:30:25] Speaker 03:
Are they extinct everywhere else?

[00:30:28] Speaker 03:
And then, that's my first question.

[00:30:30] Speaker 03:
The second is, is it consistent with the Endangered Species Act?

[00:30:34] Speaker 03:
You go, well, here this is nice, 3,000 of these in Wyoming, perfectly happy, we'll draw a circle around them.

[00:30:41] Speaker 03:
We wouldn't even draw a circle, in fact, they're perfectly happy there in Wyoming.

[00:30:45] Speaker 03:
There's no endangerment.

[00:30:47] Speaker 02:
The answer to your second question is yes.

[00:30:50] Speaker 02:
The question for the agency is, is this existing population, where it is now, in danger of extinction?

[00:30:57] Speaker 03:
And you would just ignore that they're only there because that's the only place they're left.

[00:31:02] Speaker 03:
They've been hunted to extinction in every other pocket of the United States and we're gonna look at this, we're gonna study this species and go, no need to list buffalo or bison because here's a happy group in Wyoming.

[00:31:15] Speaker 02:
Yes, because the question is, is this species endangered of extinction?

[00:31:19] Speaker 02:
That's as far as the Endangered Species Act goes.

[00:31:21] Speaker 02:
It tries to prevent extinction.

[00:31:22] Speaker 02:
It doesn't.

[00:31:23] Speaker 03:
I understand what the Endangered Species Act does.

[00:31:25] Speaker 03:
It seems to us this sort of narrow focus on current as opposed to looking at both historic and current to assess.

[00:31:33] Speaker 03:
what the status of the species is, seems to me a bit wooden and counter to the whole purpose of the Endangered Species Act, which isn't just to go, we don't care what's happened, we're looking at these for the first time, here they are, we're not going to pay any attention to where they normally were.

[00:31:52] Speaker 02:
Well, just protecting them from extinction has been a very ambitious and major goal for the agency over these last years, since 1973.

[00:32:00] Speaker 02:
And they've come a long way and recovered a lot of species.

[00:32:03] Speaker 02:
The goal you're talking about of restoring species to their historic... But are they protected from extinction at that point?

[00:32:09] Speaker 03:
Or are they now not protected from extinction because they are extinct in all of the United States?

[00:32:15] Speaker 03:
Am I hypothetical except Wyoming?

[00:32:17] Speaker 02:
The protections of the Endangered Species Act apply to animals, not to places.

[00:32:25] Speaker 02:
And so you look at the animals where they are and you determine whether they are in danger of becoming extinct.

[00:32:31] Speaker 02:
If they are not in danger of becoming extinct.

[00:32:34] Speaker 02:
And it's a factual question, and then they are not endangered or threatened and can't be listed.

[00:32:41] Speaker 02:
That would be true even if they used to occupy ten times the area.

[00:32:45] Speaker 02:
It's statute does not go so far.

[00:32:47] Speaker 03:
But if they could move back out, Montana, Oklahoma, whatever, if you protect them, they'll have the capacity to go out and no longer be extinct in the rest of the country.

[00:32:55] Speaker 02:
which have the authority when the federal government doesn't, do have the authority to allow that to happen.

[00:33:01] Speaker 02:
These populations are going to have a lot of protection, especially in the areas of suitable habitat, if the delisting is restored.

[00:33:08] Speaker 02:
Michigan, Wisconsin, and Minnesota have very good protective regulations in the areas of core wolf habitat.

[00:33:16] Speaker 04:
But not the six states that surround.

[00:33:18] Speaker 04:
They have no such.

[00:33:20] Speaker 02:
Right.

[00:33:21] Speaker 04:
And I have a question.

[00:33:22] Speaker 04:
You mentioned the political acceptability

[00:33:25] Speaker 04:
in danger species protection from the federal government and I have a question about if I were

[00:33:35] Speaker 04:
a Maine politician in the state of Maine, which I assume has a lot of, well, suitable habitat, but it wasn't chosen as one of the areas for the recovery plan.

[00:33:48] Speaker 04:
And if I looked at, compared to, let's say, South Dakota, which is just about, under your rule, delisted, and think, how come that state gets delisted and my state doesn't?

[00:34:03] Speaker 04:
And it seems like there's,

[00:34:05] Speaker 04:
without having done anything different.

[00:34:08] Speaker 04:
In fact, they have no protective laws in the Descartes law.

[00:34:13] Speaker 04:
Why?

[00:34:15] Speaker 04:
I can see why when you're looking at on the way up, the ratcheting up, you think about those states because that's where the wolves roam.

[00:34:24] Speaker 04:
But precisely for the same reason, it seems like you want to be a little bit more demanding of those states.

[00:34:28] Speaker 04:
There's very little mention in the rule.

[00:34:31] Speaker 02:
Because there's very little impact on the species.

[00:34:34] Speaker 02:
The occasional lone bull frowns into South Dakota, but the overwhelming majority of this population stays in Minnesota, Wisconsin, and Michigan.

[00:34:45] Speaker 02:
And therefore, that's where all the threats that could affect the species are.

[00:34:50] Speaker 02:
What you have in South Dakota is a threat that could affect a wolf.

[00:34:55] Speaker 04:
Got it.

[00:34:55] Speaker 04:
I follow that.

[00:34:56] Speaker 04:
It's just the listing, delisting.

[00:34:57] Speaker 04:
It seems like they're not implicated enough either way, maybe.

[00:35:01] Speaker 04:
to be within the DPS.

[00:35:02] Speaker 04:
It just seems odd to refer to states as part of the DPS when they don't actually have material population, period.

[00:35:10] Speaker 02:
It's just a function of this species' biology.

[00:35:13] Speaker 02:
It might be different with the different species that didn't roam around a lot, but this is part of the place where these wolves go.

[00:35:20] Speaker 04:
in your record of any wolves.

[00:35:22] Speaker 04:
I mean, negligible numbers wandering in those areas.

[00:35:26] Speaker 04:
It just seems like an odd.

[00:35:27] Speaker 02:
Compared to the 4,000 core population, it's negligible.

[00:35:29] Speaker 02:
But it's enough.

[00:35:30] Speaker 02:
I mean, they've radio collared these wolves and tracked them.

[00:35:32] Speaker 02:
And they know that it's a function of wolves that they disperse.

[00:35:35] Speaker 02:
And then many of them make their way back.

[00:35:37] Speaker 04:
I just have one question about the range, historic, present.

[00:35:42] Speaker 04:
I know that services positions that you look at current range, that can't be right when you're in a situation where, as you said, I think if the current range is so truncated because the species that are so much stress,

[00:35:56] Speaker 04:
Obviously, you wouldn't look at that as the relevant range, because the whole point is that they have to rebound to suitable habitat, not that population pockets range.

[00:36:07] Speaker 04:
So there's got to be some reference to both historic range and current.

[00:36:12] Speaker 02:
No, I think that goes to whether the species is viable in its current habitat.

[00:36:15] Speaker 04:
If it's not viable, then you have to say, as you did in the recovery plan, where are some other places?

[00:36:21] Speaker 02:
Right.

[00:36:22] Speaker 02:
If it's not viable in its current range, then it should be listed.

[00:36:25] Speaker 02:
Right.

[00:36:26] Speaker 02:
And this species is viable in its current range, so that's why it was delisted.

[00:36:30] Speaker 02:
But absolutely, if a species, if you look at it in its current range, and it is in danger of extinction or becoming a threatened species, then it would be listed.

[00:36:41] Speaker 02:
But you do examine it in its current range to make that determination.

[00:36:45] Speaker 02:
If that range is small, then yeah, it's probably not going to be sufficiently resilient and redundant to be delisted.

[00:36:51] Speaker 03:
Okay, thank you.

[00:36:54] Speaker 03:
I'm sorry, I apologize, but just one more, because I'm trying to reconcile with something that seems as a tension in your argument to me, but I'm sure you can tell me why it's not, and that is when it comes to explaining why you bothered to include the other six states,

[00:37:08] Speaker 03:
in this segment, instead of just having a Michigan, Minnesota, Wisconsin segment, you talk about, they roam, they travel, the expectation is that some will go there.

[00:37:20] Speaker 03:
And in fact, they have gone there, I take it.

[00:37:24] Speaker 03:
And then, but when it comes to the state regulatory plans and the fact that, I think it's not all, but almost all of those six states have no regulatory plans or protections in place for these wolves when they get there.

[00:37:37] Speaker 03:
You could, don't worry, they never go.

[00:37:39] Speaker 03:
They never go there.

[00:37:40] Speaker 02:
That's the tension I perceive.

[00:37:42] Speaker 02:
I think I can resolve that.

[00:37:44] Speaker 02:
The inquiry into state regulatory mechanisms is part of the inquiry into whether a species is threatened or endangered, not whether a wolf

[00:37:52] Speaker 02:
or two wolves, but the whole species.

[00:37:55] Speaker 02:
And so what the service found in this case is that because 95% of these wolves or more spend all of their time in Wisconsin, Michigan, and Minnesota, those are the states where protective mechanisms are important to the preservation of the species.

[00:38:12] Speaker 02:
Now, wolves do roam into these other states sometimes.

[00:38:16] Speaker 02:
But even if every wolf that wombed into South Dakota were to be killed, that would not jeopardize the viability of the species, and that is the standard under the Endangered Species Act for listing, delisting, for determinations of the species status.

[00:38:31] Speaker 02:
So it's not that they're not there.

[00:38:32] Speaker 02:
It's just that the fate of a few isolated wanderers does not

[00:38:38] Speaker 02:
under the facts of this case, impact the viability of the overall species.

[00:38:43] Speaker 03:
And just to be clear, your position then is if all the wolves that wandered into all six of these states died year after year, every time they wandered in, that still would not threaten the species.

[00:38:54] Speaker 02:
That was the factual finding in the record in this case, yes, which was?

[00:38:58] Speaker 03:
Well, you tend to do it state by state, and I'm trying to look for the collection.

[00:39:00] Speaker 03:
If all of this, the discussion is always, oh, if they wander into South Dakota and those die, that's not a problem.

[00:39:05] Speaker 03:
But I want to make clear that if

[00:39:06] Speaker 03:
Whatever the expectation or projection is, as this population continues to grow and thrive, if everything that wanders into every one of those six states every year dies, it won't be a problem.

[00:39:16] Speaker 02:
It's probably not going to continue to grow.

[00:39:18] Speaker 02:
It's probably going to stabilize.

[00:39:20] Speaker 02:
It's occupied all the suitable habitats.

[00:39:22] Speaker 02:
It hasn't been... It's stayed at a good high level, but it hasn't been growing.

[00:39:26] Speaker 02:
It's probably not going to continue to grow, so I don't want to... It's hard to grow if you get killed every time you go into the other area.

[00:39:32] Speaker 02:
But growth is not necessary for its viability.

[00:39:34] Speaker 02:
This population is stable and viable the way it is, which is why the Fish and Wildlife Service, all of the state wildlife agencies, all of the peer reviewers, and even several major environmental groups agreed that it was appropriate to delist this recovered population.

[00:39:53] Speaker 06:
Great.

[00:39:53] Speaker 06:
We'll give you back a couple minutes.

[00:39:54] Speaker 06:
Thank you.

[00:40:16] Speaker 08:
May it please the court?

[00:40:19] Speaker 08:
My name is Nate Gamble for the State of Michigan and the Michigan Department of Natural Resources.

[00:40:24] Speaker 08:
And this court should reverse the district court because the district court's ruling pulls the rug out from under the states.

[00:40:30] Speaker 08:
And by doing that, it significantly impairs the federal agency's ability to conserve endangered species.

[00:40:37] Speaker 08:
And this is because in section two of the act,

[00:40:41] Speaker 08:
The phrase that the Act uses is that state cooperation is a key to the success of the Act.

[00:40:49] Speaker 08:
And it's the way that states cooperate in the conservation of endangered species is that they are encouraged to develop and maintain their own conservation programs.

[00:41:01] Speaker 08:
And the phrase that that section uses

[00:41:03] Speaker 08:
is that federal agencies use a system of incentives in order to encourage states to develop and maintain those conservation programs.

[00:41:12] Speaker 08:
The reason it's so important for states to cooperate and participate in the implementation of the Act is that it is the states that have the resources, the facilities, the personnel to actually implement the Endangered Species Act.

[00:41:28] Speaker 04:
And it wouldn't gall you if you were in the same position in the Dakotas or in Maine to see that, you know, you didn't even have to, or does it gall you in your current position to look at your counterparts in those states and think that, you know, what kind of treatment are they getting is different because they weren't chosen by the recovery plan as the situs of this recovery?

[00:41:52] Speaker 04:
There's something about, if the recovery plan had said, we're going to focus on the habitat that still exists but has no wolves in it somewhere else in the main, then you wouldn't have had all those expenses and all that trouble.

[00:42:18] Speaker 08:
is because Michigan chose to do it.

[00:42:20] Speaker 08:
Michigan implemented state protections before the Endangered Species Act even existed.

[00:42:25] Speaker 08:
It has led the nation in wolf conservation efforts.

[00:42:28] Speaker 08:
It was the first state to introduce wolves into its own, into territory where it had previously been in 1974.

[00:42:35] Speaker 08:
So historically, it's been a leader.

[00:42:38] Speaker 08:
So the reason that wolves have recovered in Michigan is largely thanks to the efforts of the Michigan Department of Natural Resources.

[00:42:44] Speaker 04:
And so- And your position here is no good deed goes unpunished.

[00:42:48] Speaker 04:
What are the burdens?

[00:42:49] Speaker 04:
What are the burdens that you want to get out from under?

[00:42:52] Speaker 04:
I mean if you're committed to wolf preservation then

[00:42:56] Speaker 04:
with the feds.

[00:42:57] Speaker 04:
I know there's a sort of a dignitary, you want to be independent of federal involvement, but can you tell us a little more what it is?

[00:43:05] Speaker 08:
Yes, there are at least two.

[00:43:07] Speaker 08:
And the first one is what you mentioned, Judge, is that it does matter to the state of Michigan that historically states have sovereignty over their own fish and wildlife.

[00:43:18] Speaker 08:
The federal government generally doesn't, unless authorized to do so under one of their enumerated powers, generally the Commerce Clause in this case.

[00:43:25] Speaker 08:
And once the population of wolves is no longer threatened or endangered, there's no longer a legitimate reason, really, under the constitutional law for the federal government to come in and manage the state's wildlife.

[00:43:38] Speaker 08:
So that is one reason that the state, and I think these other states that have filed amicus briefs, are so interested in.

[00:43:43] Speaker 08:
But the other reason, as a practical matter,

[00:43:46] Speaker 08:
is that Michigan needs to be able to manage its wolves in accordance with the needs and the desires of its citizens.

[00:43:55] Speaker 08:
Now, Michigan's deeply committed to ensuring that a population of wolves continues to thrive in the state such that it will not be threatened or endangered, but there are areas

[00:44:08] Speaker 08:
where there are persistent wolf-human conflicts, where non-lethal measures have not successfully resolved those conflicts, and where Michigan would like to be able to open small areas to targeted hunting as a way to decrease wolf-human conflicts in those areas.

[00:44:28] Speaker 04:
You say that there are areas of conflict, but am I wrong that even under

[00:44:34] Speaker 04:
a threatened or endangered listing where there is, for example, conflict with household pets or farm animals that there is, that take may be permitted under the federal regime?

[00:44:46] Speaker 08:
That is correct, Your Honor, that the Endangered Species Act does permit that, but the whole point is that in order for Michigan to do that, they would have to get permission from the federal government to do so.

[00:44:59] Speaker 08:
And if the population- Or have a

[00:45:03] Speaker 04:
program.

[00:45:04] Speaker 04:
I mean, you could be the ones who give the licenses to do that, as long as the program is conforming.

[00:45:09] Speaker 08:
No, as long as they're listed as threatened or endangered, we would need permission in order to do that.

[00:45:15] Speaker 03:
Well, how do you get that permission mechanically?

[00:45:17] Speaker 03:
Do you file evidence of a conforming state plan?

[00:45:21] Speaker 03:
Can you do it sort of for a five-year program, or surely you're not doing it individual case by individual case?

[00:45:28] Speaker 08:
I actually don't have the logistical details that I think you're looking for, Your Honor, unfortunately.

[00:45:33] Speaker 03:
We're trying to figure out how much of a burden it really is.

[00:45:37] Speaker 08:
what we would need to get permission i i do know that and i do know we would need to ask and they can say no if we want to manage wolves in that manner as long as they're continued to be listed as an endangered species under federal law we would need permission but i'm sorry i don't know the exact details i mean i think that's a pretty important part of your position because if

[00:46:04] Speaker 04:
What you need is for the Fish and Wildlife Service to say, yes, you are statute on

[00:46:11] Speaker 04:
you know, wolves harassing domestic and farm animals has a standard that is sufficiently demanding, go at it.

[00:46:20] Speaker 04:
That's not a very heavy burden.

[00:46:22] Speaker 04:
And I am not sure that that's not all that it requires.

[00:46:26] Speaker 04:
So I'm interested in hearing.

[00:46:27] Speaker 04:
So those are some burdens.

[00:46:28] Speaker 04:
One is, just as you say, the sovereignty question.

[00:46:32] Speaker 04:
The other is management.

[00:46:34] Speaker 04:
Anything else?

[00:46:36] Speaker 04:
In terms of state burdens of remaining under this

[00:46:40] Speaker 08:
this issue no i think that that primary invasion of our sovereignty s and second practical means of managing walls without federal involved with that federal having listed as a as a species and

[00:46:55] Speaker 08:
Federal state cooperation is not an afterthought in the Endangered Species Act.

[00:47:00] Speaker 08:
Section 6 of the Act mandates the Secretary to cooperate with the states to the maximum extent practicable.

[00:47:07] Speaker 08:
That's the phrase that the section uses.

[00:47:10] Speaker 03:
Can I ask if this deal is still upheld and

[00:47:18] Speaker 03:
you went forth and were authorizing takes and hunting under your own judgment as a state, and if things went badly awry, either some unexpected disease came in and wiped out an enormous part of the population or some other problem happened.

[00:47:36] Speaker 03:
What mechanisms are there for sort of a nimble response, timely response by the state to

[00:47:47] Speaker 03:
prevent a catastrophe?

[00:47:50] Speaker 08:
Well, we routinely count how many wolves and very closely watch the population.

[00:47:56] Speaker 03:
What do you mean routinely?

[00:47:57] Speaker 03:
Is that once a year?

[00:47:58] Speaker 08:
It used to be once a year, now we're once every two years.

[00:48:02] Speaker 03:
So if you had a sudden disease come in and meanwhile we're authorizing the takes and the hunting and obviously tolerating the normal accidental killings that happen, that could be way too late.

[00:48:15] Speaker 08:
Well, we have lots of wolves that are collared, so we monitor their movements.

[00:48:21] Speaker 08:
And I think that if we were to see a sudden precipitous drop of wolves that we've collared, that would certainly get our attention.

[00:48:28] Speaker 08:
I mean, Michigan has dedicated- Has that ever happened?

[00:48:31] Speaker 08:
Pardon me?

[00:48:31] Speaker 03:
Has it ever happened?

[00:48:33] Speaker 08:
Not that I'm aware of.

[00:48:35] Speaker 08:
The population of wolves in Michigan has just continued to grow.

[00:48:38] Speaker 08:
It's plateaued over the past several years because it's filled out the habitable areas up there.

[00:48:43] Speaker 08:
But no, I mean it's really a very healthy population.

[00:48:45] Speaker 08:
In fact, these past three years in the Upper Peninsula have had really harsh winters.

[00:48:51] Speaker 08:
So the population of deer has actually been the lowest point in several decades up there.

[00:48:56] Speaker 08:
So during our last count in the winter of 1516,

[00:48:59] Speaker 08:
Our biologists expected, really, the wolf population to take a hit because of how many deer had died during the winters.

[00:49:07] Speaker 08:
And it didn't.

[00:49:08] Speaker 08:
There are very conservative estimates that there's at least 618 wolves still in the Upper Peninsula.

[00:49:13] Speaker 08:
So it didn't take that hit they expected.

[00:49:15] Speaker 08:
And we do watch it carefully.

[00:49:17] Speaker 03:
The reason I'm asking this is because there's much debating in the briefing about

[00:49:25] Speaker 03:
look, if it's delisted and the states are left to their plans rather than the federal protection of the statute itself, there's a great threat of these numbers going down, and you guys say there's not, and they say there is, and what I'm trying to figure out is some of this is not so easy to predict anyhow, and so the question is how

[00:49:51] Speaker 03:
how quickly can responses be done if things really do start going bad?

[00:49:54] Speaker 03:
How could that situation be addressed if, not because you know everything now, but if under the best, most reasoned judgments and predictions, things just go terribly wrong and there's suddenly a real threat of the Michigan population falling to a precipitous or perhaps non-viable level.

[00:50:16] Speaker 03:
Counting every two years doesn't sound like quite enough, but it sounds like there's ongoing monitoring.

[00:50:21] Speaker 03:
Do you have legislative or regulatory flexibility to suddenly change, cancel hunting season, whatever?

[00:50:29] Speaker 08:
Oh yes, yes, no.

[00:50:31] Speaker 08:
Certainly the Natural Resources Commission and the Michigan legislature have the flexibility to evaluate the status of rules regularly.

[00:50:41] Speaker 03:
And I should point out in a broader context- Having the flexibility is not the same as we do.

[00:50:44] Speaker 08:
Yes, we do we do evaluate the status of wolves regularly and so for example It's not at least different than the every two years.

[00:50:51] Speaker 03:
That's the ongoing Daily monthly weekly monitoring of the collared animals.

[00:50:56] Speaker 08:
Yes, there's regular monitoring of collared animals We work with our colleagues in Wisconsin and Minnesota our biologists have point people of contact in those other states There's a summit held every year to discuss the status of the population as a whole because as miss pep had mentioned that

[00:51:11] Speaker 08:
The population, I mean, kind of coincidentally resides in Minnesota, Wisconsin, and Michigan, but the protection and the management is of the population, regardless of where it's located.

[00:51:24] Speaker 08:
So we work closely with our other state partners to evaluate the status.

[00:51:29] Speaker 08:
There's a yearly summit.

[00:51:31] Speaker 08:
There are people that are dedicated to watching the wolves.

[00:51:34] Speaker 08:
I mean, when I say a formal count,

[00:51:37] Speaker 08:
There's a formal count now every two years, but that's kind of a formal estimate of the numbers.

[00:51:43] Speaker 08:
But that doesn't mean that in the meantime during the year and during each month that there aren't staff people that are constantly evaluating the status of the wolves.

[00:51:51] Speaker 08:
And in terms of how to respond to a sudden precipitous drop in population, certainly

[00:51:55] Speaker 08:
If there is a sudden drop, then there wouldn't be any small hunts authorized for that year.

[00:52:03] Speaker 08:
I think that that would be the first thing that would come to mind.

[00:52:06] Speaker 08:
But there would also be ways to, well, it's just so hard to decide.

[00:52:11] Speaker 08:
I mean, depending on the threat.

[00:52:12] Speaker 03:
Is there any mechanism, what if, after the delisting, not your state, but one of the other two states, someone said,

[00:52:20] Speaker 03:
We're done with this.

[00:52:20] Speaker 03:
The cooperation doesn't work.

[00:52:22] Speaker 03:
Sometimes when states get together, things don't always work as well.

[00:52:27] Speaker 03:
And so what would happen then if one of the other states or the other two states said, we're not playing anymore.

[00:52:32] Speaker 03:
We're going on our own, our dignitary sovereignty interests.

[00:52:35] Speaker 03:
We're going to protect our own, those within our state, and we're not going to worry about this.

[00:52:40] Speaker 03:
What would happen then?

[00:52:42] Speaker 08:
Well, that, I think, is the role that the federal government continues to have.

[00:52:45] Speaker 08:
There's a mandate in the act that requires them to continue and to monitor the status of a species after it's been delisted to anticipate and to account for situations.

[00:52:55] Speaker 03:
But they can't do anything until it actually gets to the level of threatened or endangered, right?

[00:52:59] Speaker 08:
They could make an emergency listing.

[00:53:01] Speaker 03:
Even if it's not threatened or endangered?

[00:53:03] Speaker 08:
Well, I think that they could make an emergency finding that it's threatened or endangered because of a precipitous drop in population.

[00:53:08] Speaker 03:
But they would have to wait until it got to the point of actually threatened, at least.

[00:53:11] Speaker 08:
As far as what the guidelines for how the Fish and Wildlife Association make that decision, I think I don't have that exact information on the tip of my tongue.

[00:53:20] Speaker 06:
Thank you very much.

[00:53:37] Speaker 07:
Good morning.

[00:53:37] Speaker 07:
Jim Lister for the defendant interveners in the Hunter Conservation Coalition.

[00:53:43] Speaker 07:
I'm here primarily to discuss one of the issues designated for oral argument.

[00:53:47] Speaker 07:
That is, whether FWS's obligation to use the best scientific and commercial data available when deciding citizen petitions to list or delist a species allows FWS to revise prior decisions regarding the scope and definition of the species that is the subject of the citizen petition.

[00:54:05] Speaker 07:
Our belief is the answer is yes.

[00:54:08] Speaker 07:
The HCC members, including the Sportsman's Alliance, filed citizen petitions to recognize a Western Great Lakes distinct population segment and delist that was done in 2010, and in 2011, FWS, after taking public comment, found that the petition was warranted, and it did that.

[00:54:25] Speaker 07:
I'd urge our honors, as you review this case, to look very carefully at the portions of the final rule, which discuss the areas surrounding the poor recovery populations in Minnesota, Wisconsin, and Michigan.

[00:54:39] Speaker 07:
And what we will find

[00:54:40] Speaker 07:
are well-supported fact findings that the areas to the periphery are areas where wolves might roam, but they're not suitable habitat to establish long-term living in those areas.

[00:54:52] Speaker 07:
A roamer could go, could come back, but they're not going to then inform packs.

[00:54:58] Speaker 07:
And that's not because of lack of protections in those areas.

[00:55:03] Speaker 07:
It's because even with protections, there is just not suitable habitat.

[00:55:07] Speaker 07:
Therefore, those areas are not a significant portion of the range of the Western Great Lakes wolves.

[00:55:15] Speaker 07:
Since they're not a significant portion of the range, there is no obligation to recover them.

[00:55:20] Speaker 03:
Can I ask you a question on the service here said that in analyzing

[00:55:27] Speaker 03:
the state plans and the consequences of delisting, that it didn't have to address the impact of hunting because it was highly speculative whether hunting would happen.

[00:55:39] Speaker 03:
Do you agree that it's highly speculative whether hunting is going to happen in Michigan, Minnesota, and Wisconsin?

[00:55:46] Speaker 07:
After delisting, hunting did happen in Wisconsin and Minnesota.

[00:55:50] Speaker 03:
So that was quite mistaken determination by the service that it was highly speculative.

[00:55:53] Speaker 03:
It happened pretty fast, did it not?

[00:55:56] Speaker 07:
uh... it did happen and in the district we have a pretty fast i'm sorry i didn't understand the question.

[00:56:03] Speaker 07:
I'm sorry it happened pretty quickly as i recall uh... yes it did and the populations were so well above the recovery thresholds uh... that there were fact there are fact findings in the district court records as to how much they might come down with hunting and that

[00:56:20] Speaker 07:
coming down was far less than would be necessary to bring them all the way down to the recovery thresholds.

[00:56:28] Speaker 07:
In other words, with or without hunting, the recovered populations are well above the recovery thresholds.

[00:56:33] Speaker 03:
What do we do with the fact that hunting is certainly a type of impact that needs to be analyzed in deciding whether to delist in the service here?

[00:56:44] Speaker 03:
just drop the ball on that.

[00:56:46] Speaker 03:
And that's not an indictment of how the hunting's gone or anything like that, as you said.

[00:56:52] Speaker 03:
It's really a question of what do we do with the fact that they didn't address it at all, they didn't analyze it.

[00:56:59] Speaker 03:
And it is clearly a type of impact that needs to be factored in.

[00:57:02] Speaker 03:
The answer might very well be the same.

[00:57:04] Speaker 03:
And now they even have a record to look at.

[00:57:07] Speaker 03:
But they didn't address it at all.

[00:57:10] Speaker 07:
I guess I'd have to disagree with that.

[00:57:13] Speaker 07:
There's voluminous comments on the impact of hunting, whether there would be hunting, whether Minnesota would hold off for five years or not for five years.

[00:57:22] Speaker 07:
There's a great deal of comment on that, and I do believe it's addressed.

[00:57:25] Speaker 03:
I know there's lots of comments.

[00:57:27] Speaker 03:
If I'm misunderstanding here, my reading of the record was that the services response was, actually, it's highly speculative.

[00:57:36] Speaker 03:
And so then there was no more analysis that I've seen by the service.

[00:57:40] Speaker 03:
It's not a question of comments coming in.

[00:57:42] Speaker 03:
It's a question of whether the service did what it's supposed to do, and that is address that concern in any meaningful way other than this patently erroneous declaration that was highly speculative.

[00:57:56] Speaker 07:
Yeah, I think the way to address this is what is the impact of this.

[00:58:00] Speaker 07:
We have in the record in the district court's finding on standings precise figures on what the impact

[00:58:06] Speaker 07:
of hunting was, after delisting, the district court made some judgments.

[00:58:10] Speaker 07:
She found that there would be a relatively modest reduction because of hunting, that that was enough to give the plan a standing, but it was nowhere near enough to bring it down to the recovery plan level.

[00:58:21] Speaker 07:
So whether you talk about harmless error or if there was error, it had, in the end, no impact on whether these wolves are recovered.

[00:58:28] Speaker 03:
Is there harmless error?

[00:58:29] Speaker 03:
Is harmless error available under the Administrative Procedure Act for failure to address a recognized factor that's supposed to be addressed in the Endangered Species Act?

[00:58:38] Speaker 07:
It has no impact, and it's in the last sentence of 5 U.S.C.

[00:58:41] Speaker 07:
706.

[00:58:43] Speaker 03:
And is that just, how long term is that?

[00:58:46] Speaker 07:
Well, how long term in terms of the impact of hunting?

[00:58:53] Speaker 07:
The states conduct wolf counts.

[00:58:55] Speaker 07:
There were hunting seasons there no longer because of the reinstatement of the listing.

[00:59:00] Speaker 07:
The states conduct the wolf counts.

[00:59:03] Speaker 07:
On top of the states is the federal government with post delisting monitoring.

[00:59:07] Speaker 07:
And on top of that is the emergency relisting power.

[00:59:09] Speaker 07:
So there's multiple layers of protection there.

[00:59:13] Speaker 03:
What I wanted to address... The emergency listing, am I wrong?

[00:59:17] Speaker 03:
I could be wrong, but can they do an emergency listing before a species is threatened if it's threatened with becoming threatened?

[00:59:25] Speaker 07:
Can they do anything or not?

[00:59:28] Speaker 07:
The Endangered Species Act protects species that are threatened or endangered.

[00:59:31] Speaker 03:
It doesn't protect species... Right, so they can't do anything until we get to the level of being threatened.

[00:59:34] Speaker 07:
Yeah, that would be a violation of the statute to do that because they're only allowed to protect species that are threatened or endangered.

[00:59:40] Speaker 07:
The central point I wanted to make, and I realize I'm out of time here, is that the district court found that the statute granted the FWS flexibility in 1978 to tailor protections where needed.

[00:59:53] Speaker 07:
The core states are not where these protections are needed because they're recovered.

[00:59:56] Speaker 07:
But then the court found that FWS sacrificed that flexibility

[01:00:03] Speaker 07:
by making a decision to list at a broader level Pacific Ocean to Atlantic Ocean with a carve-out for Alaska and a semi-carve-out for Minnesota.

[01:00:13] Speaker 07:
What most calls us about this decision was the way the district court, and where I think respectfully the district court erred, was in giving sort of dispositive permanent force to an election that the service made in 1978.

[01:00:26] Speaker 07:
When administrative agencies aren't bound like that, they can change their mind.

[01:00:30] Speaker 07:
We may debate the level of deference to an administrative agency when it changes its mind, but we don't doubt the power of the agency to change its mind.

[01:00:37] Speaker 04:
So let me ask you.

[01:00:38] Speaker 04:
I take it that I understand what you're saying.

[01:00:42] Speaker 04:
This broad, basically nationwide designation, should that limit the flexibility?

[01:00:49] Speaker 04:
But there's also this character of the Dangerous Species Act that wherever a species is found, it's protected.

[01:00:55] Speaker 04:
So if there's no crocodiles in New England, but if somebody brought a crocodile in New England and was keeping it in their bathtub and abusing it, they would be liable to criminal penalties, right?

[01:01:05] Speaker 07:
The delisting doesn't extend outside the Western Great Lakes DPS.

[01:01:09] Speaker 04:
And so if we have a delisted Western Great Lakes and a still threatened listing in the New Mexico area, and there isn't a genetic difference or there's not a taxonomic difference between the wolves that's been established.

[01:01:30] Speaker 04:
That's not something that the service is relying on here, right?

[01:01:32] Speaker 04:
The wolves are the wolves of the wolves in the country.

[01:01:36] Speaker 04:
And somebody brings a big truckload of wolves to my inn in New Hampshire, because I want to have a big hunting party.

[01:01:46] Speaker 04:
And people go out and hunt these wolves.

[01:01:49] Speaker 04:
There's going to be criminal liability if those wolves were brought from New Mexico, but not if they were brought from Michigan.

[01:01:56] Speaker 07:
Once the wolves leave the delisted boundaries of the DPS, they're protected.

[01:02:01] Speaker 07:
And their criminal penalties for tape if you were to bring them outside the boundaries of the DPS.

[01:02:07] Speaker 07:
Let me sum up.

[01:02:08] Speaker 07:
Our essential point is that we as citizen petitioners had a statutory right to a decision based on the best currently available scientific and commercial information.

[01:02:17] Speaker 07:
The district court erred by binding FWS to a boundary decision on the scope of the delisting analysis that it made in 1978.

[01:02:27] Speaker 07:
when by statute a distinct population is a species, is an appropriate granular level for a delisting determination.

[01:02:36] Speaker 07:
There's no question that the Western Great Lakes wolves have recovered and that the areas where there are not so many wolves in the Western Great Lakes are non-significant range portions without suitable habitat.

[01:02:47] Speaker 07:
That drives everything and the 1978 decision should not have bound the agency in 2011.

[01:02:52] Speaker 04:
And Mr. Lister, if my in were in North Dakota, then fine.

[01:02:58] Speaker 07:
That's that's right.

[01:02:59] Speaker 07:
That's that's within the part of the Dakotas.

[01:03:02] Speaker 07:
The line goes down through the middle of the codes.

[01:03:06] Speaker 06:
Thank you very much.

[01:03:13] Speaker 06:
Mr. Henry.

[01:03:16] Speaker 01:
Good morning, and may it please the court.

[01:03:21] Speaker 01:
The service says the species at issue here is a distinct population segment, and so is a different species under the Act.

[01:03:28] Speaker 01:
But the species in all reality is the gray wolf.

[01:03:33] Speaker 01:
And small little pockets, we've had some discussion of those, matter.

[01:03:37] Speaker 01:
Those things become big pockets, like Minnesota did.

[01:03:40] Speaker 01:
And here, important to this decision and the reason why the district court is correct is because the service is not writing on a blank slate.

[01:03:48] Speaker 01:
There is a pre-existing listing throughout all of the lower 48 states.

[01:03:53] Speaker 01:
And the practical impact of the problem with the service's approach

[01:03:58] Speaker 01:
is that as a result of their one-directional analysis, that is, looking at the threats analysis to determine whether or not protections are needed to maintain the viability of this core population in its current range, is that we don't know as a result of this rulemaking if the Great Lakes population should still be protected for the purposes of furthering recovery to an area that is still listed.

[01:04:26] Speaker 01:
And so I think that that's a key element of this case is that the service has effectively left for another day the question of the impact of removing protections from the Great Lakes population.

[01:04:43] Speaker 06:
That's not the most fundamental issue, is it?

[01:04:45] Speaker 06:
The most fundamental issue is what is the language of the statute authorized the service to do?

[01:04:51] Speaker 06:
And what is the language of the statute you claim

[01:04:55] Speaker 06:
the service is abridged, is negated.

[01:04:59] Speaker 01:
I think in the first instance, with respect to the designation of the DPS, I think it's clear from the statute that you cannot list and delist an entity at the same time.

[01:05:13] Speaker 06:
How is that clear from the statute?

[01:05:15] Speaker 06:
Is there anything in the statute that directs the issue?

[01:05:17] Speaker 06:
Sure.

[01:05:18] Speaker 01:
I think a natural reading of Section 4 does just that.

[01:05:23] Speaker 01:
So if you look at section four, it talks about the service must determine whether an entity is threatened or endangered.

[01:05:30] Speaker 01:
And then following that, there are affirmative obligations.

[01:05:33] Speaker 01:
There is a duty to designate critical habitat.

[01:05:35] Speaker 01:
There is a duty to recovery plan.

[01:05:37] Speaker 01:
And so the service chides the plaintiffs for sort of attempting to inject a temporal element here that it says doesn't exist.

[01:05:46] Speaker 01:
But there's some time involved intrinsic to the statute where the only natural reading is that

[01:05:52] Speaker 01:
If you're going to create a new entity under the Act, if you're going to designate it, whether it's a species, a subspecies, or a DPS, that listing needs to come with an effort to protect that entity.

[01:06:05] Speaker 01:
Those are obligations under the Act.

[01:06:07] Speaker 01:
And so you can't in the same breath declare something threatened and endangered and not threatened and endangered.

[01:06:12] Speaker 04:
And that's only one problem with the DPS.

[01:06:14] Speaker 04:
But really, there's a lot of history here, and their alternative position is

[01:06:17] Speaker 04:
you know, we recognize the endangerment of this population and the states did before the current ESA, before the DPS definition.

[01:06:25] Speaker 04:
They were being treated as a distinct population, de facto DPS, you know, so clearly all those duties that you talk about

[01:06:35] Speaker 04:
identifying critical habitat and looking at the regulatory mechanisms and other forms of threats that have been happening for decades.

[01:06:44] Speaker 04:
So the real question is, as they frame it, once the species has rebounded and it is a population that for conservation purposes is a logical unit, it's a population that has enough

[01:07:00] Speaker 04:
members that has enough habitat, that has enough breeding pairs, that has enough stability at a robust level over a period of time.

[01:07:08] Speaker 04:
You've done all that.

[01:07:10] Speaker 04:
And they're saying, now we, as a matter of state sovereignty, as a matter of resource allocation, would like to turn our attention elsewhere.

[01:07:20] Speaker 04:
And this is what we think this unit is.

[01:07:24] Speaker 04:
And so why not allow

[01:07:28] Speaker 04:
though what was a Minnesota unit and has now fortuitously expanded, be deemed to be, have the boundaries slightly adjusted, but it was the old unit.

[01:07:42] Speaker 04:
Now let's just delist it.

[01:07:43] Speaker 04:
Why not?

[01:07:44] Speaker 04:
What in the statute?

[01:07:45] Speaker 01:
Well, I think the answer is twofold.

[01:07:47] Speaker 01:
First, because the Fish and Wildlife Service never actually considered the Minnesota listing to be a functional DPS.

[01:07:54] Speaker 01:
As the Fish and Wildlife Service explained, the service listed in 1978 species throughout the lower 48 states.

[01:08:01] Speaker 01:
And the distinction with respect to Minnesota was for regulatory convenience.

[01:08:07] Speaker 01:
And I think that the service has defended that position with respect to other species that were listed not as a DPS.

[01:08:17] Speaker 01:
In fact, in the Coos Bay case and the Ninth Circuit with the marbled murrelets,

[01:08:22] Speaker 01:
And I don't think that is included in the briefing, and so I will, in Coos County case, excuse me, I will provide the site.

[01:08:28] Speaker 01:
It's 531 F3rd 792.

[01:08:30] Speaker 01:
The Fish and Wildlife Service defended its continued listing of an entity that was neither a species subspecies or DPS.

[01:08:41] Speaker 01:
And so the service has sort of taken this position that an entity doesn't have to be an implied or functional DPS.

[01:08:53] Speaker 01:
And so I think the result here, again, is that whether you're looking at this action as having carved out a DPS or having expanded the Minnesota listing,

[01:09:05] Speaker 01:
A necessary conclusion is that the service has included into this designation, this designation now, areas of the Wolf range that are within the lower 48 listing.

[01:09:18] Speaker 01:
And again, the service is not riding on a blank slate.

[01:09:20] Speaker 01:
So we can't myopically look only at the current range.

[01:09:26] Speaker 01:
and include in it areas that were included in the lower 48 listing, and then not apply the Section 4 analysis to the lower 48 listing.

[01:09:34] Speaker 01:
The lower 48 listing is on the books.

[01:09:36] Speaker 01:
The service needs to deal with it.

[01:09:38] Speaker 01:
And if you are revising an existing listing, you do so under the Section 4 analysis, which includes the threats analysis.

[01:09:45] Speaker 01:
And it didn't do that here.

[01:09:47] Speaker 01:
And in fact, it doubled down on that, because with respect to its significant portion of the range interpretation, which I would suggest actually is not entitled to Chevron deference, because with respect to reliance on the policy, the policy post-dated this rule.

[01:10:01] Speaker 01:
Now I will admit that the interpretation is generally

[01:10:05] Speaker 01:
the same as the service had in the rulemaking, but I think just on the issue of deference, the policy is not entitled to deference, Chevron-level deference, for purpose of this rulemaking.

[01:10:18] Speaker 01:
But beyond that, case law from this circuit and from the Supreme Court says that the service doesn't get any deference.

[01:10:24] Speaker 01:
to a statutory interpretation that is unreasonable or so narrowly construes the statute as to render it non-operational or undermine its purpose.

[01:10:35] Speaker 01:
And I think what the service did by focusing so clearly only on current range is that it engaged in a one-directional analysis.

[01:10:43] Speaker 01:
So that even if you dig in to the record, and you look at the threats analysis, of which there are 30 some odd pages, from JA 1142 to 1176, and you look, and the district court did do that deep dive, and I think its factual findings are correct in this regard.

[01:11:02] Speaker 01:
The service's one directional approach looked only to whether threats will

[01:11:10] Speaker 01:
are not so bad as to render the current population in its current range non-viable in the foreseeable future.

[01:11:22] Speaker 01:
And that one directional analysis, I think, is inconsistent with the statute, especially when we've got a larger listed entity here.

[01:11:31] Speaker 01:
And so what the service has done by declaring a DPS and then not looking beyond it, and then even within it in terms of applying a significant portion of the range analysis within it, but giving short shrift to the value of the current population to potential recovery the other direction into unoccupied land, unoccupied areas, is that it has done just what the district court said is so dangerous.

[01:11:55] Speaker 01:
It could draw a line around the current population and then delist everywhere.

[01:12:00] Speaker 04:
What other habitat are you thinking about when you say it could further expand?

[01:12:07] Speaker 01:
Well, you know, I'm no expert, so I'll turn to what the Fish and Wildlife Service has said.

[01:12:11] Speaker 01:
The Fish and Wildlife Service has said in the past, in rule-makings regarding wolves, that there is viable habitat, and in this case the service is talking about suitability for occupation.

[01:12:22] Speaker 01:
in the Northeast, lower peninsula of Michigan, Southern Rockies, and North Dakota, which happens to be a swath of land right in between the poor recovery populations of the Great Lakes and the Northern Rockies.

[01:12:34] Speaker 01:
And an area in which we have seen, as is mentioned in the record, albeit only in the context of discounting these dispersals that I'm about to mention, for purposes of defining its DPS and then ignoring them,

[01:12:47] Speaker 01:
Dispersals from wolves in the northern Rockies to the Dakotas and dispersals from the Great Lakes hundreds of miles and so this is This is a real practical concern And I think one thing the the district court also pointed out that I think is crucial here Is that the extent the service said anything about unoccupied land it only talked in the terms of suitability of?

[01:13:07] Speaker 01:
inhabitation suitable suitable habitat

[01:13:09] Speaker 01:
And this service is correct that this one directional analysis left unreviewed threats to the species like inadequate prey base or sufficiency or insufficiency of gene flow, which was a big issue in the Northern Rockies litigation that this court just heard argument in last month and was a reason for rejection of a prior Northern Rockies delisting rule.

[01:13:31] Speaker 01:
Those threats that may be an unoccupied area, even within the DPS, they were only reviewed

[01:13:39] Speaker 01:
They weren't reviewed at all, actually, in that area.

[01:13:42] Speaker 01:
The only issue that the service looked at at all with respect to unoccupied area, and only did so briefly, is this issue of whether there could be permanent occupation of wolves there.

[01:13:53] Speaker 01:
And permanent occupation can't be the defining factor for what constitutes a valuable portion of a species' range.

[01:14:01] Speaker 04:
I'm not sure what your point is about the gene flow.

[01:14:04] Speaker 04:
In terms of prey, you're saying even if some of the surrounding areas, let's say, are not suitable habitat for the wolves, they might be habitat for the wolves' prey, and therefore?

[01:14:15] Speaker 01:
That's correct.

[01:14:16] Speaker 01:
And with gene flow, I think it's an even better example, actually.

[01:14:20] Speaker 01:
So you get these dispersers.

[01:14:21] Speaker 01:
And what the service has repeatedly said

[01:14:24] Speaker 01:
is that, in many rule-makings in both core recovery areas, is that because of the unique nature of wolves as a native carnivore, a canid, a pack animal, in order for the population to be self-sustainable in the long term, we need these dispersers to go out and share their genes.

[01:14:40] Speaker 01:
And so even if those dispersers go out into an area that they can't inhabit permanently,

[01:14:45] Speaker 01:
that area may be a dispersal corridor, or a habit corridor, between areas.

[01:14:51] Speaker 04:
And so we're talking about the- Hello Cupid for Wolves from Rocky Mountains and from- Exactly, exactly.

[01:14:57] Speaker 01:
And this isn't some speculative concern of over-emotional environmentalists, right?

[01:15:03] Speaker 01:
The record shows, albeit briefly, because again, it's discounted, that we've got dispersals going through the Dakotas, and we've got the service and prior rulemaking, so you can look at

[01:15:12] Speaker 01:
of volume 71 of the Federal Register, page 15279, that North Dakota actually does contain areas of viable, occupiable habitat.

[01:15:21] Speaker 01:
So we've got a swath of land in between core recovery areas that the service has put blinders onto in the context of this rule.

[01:15:28] Speaker 06:
Can I go back?

[01:15:29] Speaker 06:
So your statutory argument is that the service doesn't have authority to use the DPS to delist, right?

[01:15:38] Speaker 06:
Is that correct?

[01:15:39] Speaker 01:
to designate and delist at the same time?

[01:15:41] Speaker 06:
At the same time, at the same time.

[01:15:42] Speaker 01:
And that's crucial to the flexibility question as well.

[01:15:46] Speaker 06:
So that's your statutory argument.

[01:15:50] Speaker 06:
But do you take issue with the way the service has interpreted how they're to determine the DPS?

[01:15:58] Speaker 06:
Because in their policy, they clearly separate the determination of the DPS from the delisting issue.

[01:16:08] Speaker 06:
They're separate inquiries, and yet you want to require them to make them one at the same time.

[01:16:15] Speaker 06:
You say they can't make them one at the same time.

[01:16:18] Speaker 01:
I don't understand your view of their policy.

[01:16:23] Speaker 01:
In terms of discreteness and significance of defining the DPS, I don't think that there is a dispute on the table here.

[01:16:31] Speaker 01:
That's not something that plans have raised, but I think in terms of the interrelation of the threats analysis, which includes looking at whether the species is threatened and endangered and therefore includes the significant portion of the range issue.

[01:16:43] Speaker 01:
and the designation of DPS issue, I think they're interrelated.

[01:16:47] Speaker 01:
I don't think the service can play this two-step to try to avoid the significance of the range issue.

[01:16:53] Speaker 06:
Why can't they?

[01:16:54] Speaker 06:
Their policy allows them to.

[01:16:56] Speaker 06:
Is it your argument that the policy runs afoul of the statute?

[01:17:00] Speaker 06:
I don't think that's an argument you've made, but maybe I missed it.

[01:17:04] Speaker 01:
I think that it does to the extent that they're not writing on a blank slate and that this DPS is surrounded by a larger listed entity and in point of fact is being drawn out of it.

[01:17:14] Speaker 06:
So I don't think it... I'm sorry, I don't understand.

[01:17:18] Speaker 06:
Let me read to you the language of their policy.

[01:17:21] Speaker 06:
If a population segment is discrete and significant, per ren, that is, it is a distinct population segment, right?

[01:17:30] Speaker 06:
So if they've undertaken an inquiry and they found a discrete and significant

[01:17:34] Speaker 06:
population.

[01:17:36] Speaker 06:
We call them DPS.

[01:17:40] Speaker 06:
Its evaluation for endangered or threatened status will be based upon the act's definition of the threat.

[01:17:46] Speaker 06:
It seems to me from the policy they can do exactly what they did here.

[01:17:50] Speaker 06:
They don't have to find a DPS is threatened or endangered according to a policy.

[01:17:57] Speaker 06:
Do you have issues with their policy?

[01:17:58] Speaker 01:
not in that regard.

[01:18:00] Speaker 01:
I don't think we do.

[01:18:01] Speaker 01:
But the problem is beyond that.

[01:18:03] Speaker 01:
The problem beyond that is that once they have designated that DPS according to that policy, they proceed by considering it a new species.

[01:18:10] Speaker 01:
Only look at threats within that DPS and not outside it.

[01:18:14] Speaker 01:
And here we're not designated DPS from with

[01:18:17] Speaker 01:
from nothing, from a species that doesn't need protection.

[01:18:20] Speaker 01:
But we've got this larger listed entity that the DPS is in fact being carved out of.

[01:18:25] Speaker 01:
And what it leaves is a non-DPS remnant.

[01:18:28] Speaker 01:
And this came up as a major issue with the 2003 rule and in the District of Oregon and Vermont cases in 2005.

[01:18:34] Speaker 01:
And what the District Court in Vermont said is, you can't leave even applying the DPS policy correctly.

[01:18:42] Speaker 01:
a non-DPS remnant from an existing listing that you haven't applied.

[01:18:48] Speaker 01:
the delisting factors, because you have, in point of fact, removed that DPS from within it.

[01:18:54] Speaker 01:
And even if, again, you consider the service to be working from this Minnesota baseline, it's still revising the lower 48 listing.

[01:19:02] Speaker 01:
In fact, after it first attempted this in 2007, and Judge Friedman from the district court questioned the tactic, the service went back three months later, got the solicitor's opinion, and if you look at the solicitor's opinion, the solicitor's opinion hasn't sort of

[01:19:17] Speaker 01:
At that time, the agency hadn't come up with this Minnesota alternative entirely yet.

[01:19:23] Speaker 01:
And so the solicitor's opinion talks in terms of carving out the DPS within the lower 48 listing.

[01:19:31] Speaker 01:
And so I think that the problem is even probably.

[01:19:33] Speaker 03:
So is your position, I'm sorry, so it's both, you've got your, I'm trying to make sure it's right, it's both a statutory argument and is it also a record argument?

[01:19:41] Speaker 03:
So when you've got the situation where you already have a listed species,

[01:19:45] Speaker 03:
and then they carve out the segment that the statute requires them to do two things, both make the determinations you need to to carve that out and to determine its status, but then they also have to look at what's left and determine what the impact of that carve out is on

[01:20:12] Speaker 03:
the survival of what is left.

[01:20:14] Speaker 03:
And it's that part, it's that second inquiry that is the problem here, that they didn't figure out what the impact of drawing that out would be, would it then essentially render the listed species extinct in the rest of, other than their segment pockets, in the rest of the United States.

[01:20:32] Speaker 01:
That is part of the problem.

[01:20:33] Speaker 01:
It is a record oriented problem in one respect because the record has this larger listed entity in it and the service needs to resolve that consistent with the act, which again, I'd like to get to the flexibility point and say that there is flexibility here at some point.

[01:20:49] Speaker 01:
But I also think that there's this additional statutory component to that because in leaving a non-DPS remnant,

[01:20:56] Speaker 01:
There's a real question as to what that leaves in terms of the workability of the ESA to that remaining entity that remains endangered, right?

[01:21:05] Speaker 04:
The problem with the- How do you say the non-DPS remnant?

[01:21:10] Speaker 04:
What exactly are you referring to?

[01:21:11] Speaker 01:
What's left over of the lower 48 listing.

[01:21:13] Speaker 01:
Everything, not- Apart from what's been carved out as a separate subspecies or by Congress and legislatively delisting, but what's left of, that we have now, of the lower 48 listing.

[01:21:22] Speaker 04:
And what's the problem?

[01:21:23] Speaker 01:
And the problem is you've got an additional statutory problem there because you've left an entity that is neither a species, nor a subspecies, nor a DPS, nor the legal artifact that the service has defended and the courts have upheld prior to the DPS policy.

[01:21:38] Speaker 01:
And what's interesting about that is that... Why don't you just have a species?

[01:21:41] Speaker 04:
I thought you did have a species.

[01:21:43] Speaker 01:
Well, you have a species, mine is a DPS.

[01:21:46] Speaker 01:
Right.

[01:21:47] Speaker 01:
It's a species.

[01:21:48] Speaker 01:
I think I can explain this well by pointing to the service's own words.

[01:21:51] Speaker 01:
Because shortly after finalizing this delisting of this DPS rule, but before the district court's judgment, the service promulgated another rule, which it proposed but has stagnated on.

[01:22:05] Speaker 01:
And that proposed rule

[01:22:08] Speaker 01:
was in 2003.

[01:22:10] Speaker 01:
That proposed rule is at volume 78 of the Federal Register, pages 35664.

[01:22:15] Speaker 01:
And what that proposed rule purported to do, plans to do, was to delist the species throughout most of its unoccupied range.

[01:22:23] Speaker 01:
And the justification for that was, I quote, it is not a valid entity under the ESA.

[01:22:29] Speaker 01:
So the service engaged in this sort of gymnastics exercise with respect to use of the DPS policy, where it draws a DPS, calls it a new species, analyzes threats only to the continuing viability of that entity,

[01:22:44] Speaker 01:
removes the protections from it, and then step two is to go back and say, the rest is invalid under the Act.

[01:22:52] Speaker 01:
That can't be the case.

[01:22:53] Speaker 01:
That's a statutory problem under the Act, that leaving the non-listed entity that the service... I'm sorry, what do you mean the rest is invalid?

[01:23:00] Speaker 01:
I'm sorry, I keep saying that.

[01:23:01] Speaker 01:
I'm short for me, and I suppose I'm talking about the remnant that is the lower 48 that no longer has a population within it because the service carved it out.

[01:23:10] Speaker 04:
Does it have the New Mexico population?

[01:23:13] Speaker 01:
It does, although the New Mexico population, just to clarify, is recognized as a separate subspecies.

[01:23:18] Speaker 01:
So it's a subspecies of gray wolf.

[01:23:20] Speaker 01:
It's not considered within the lower 48 listing.

[01:23:24] Speaker 01:
And the rest does contain wolves that are in Wyoming.

[01:23:29] Speaker 01:
The service attempted to delist throughout what it calls the Northern Rockies DPS.

[01:23:34] Speaker 01:
That was rejected among the dozen or so courts that have rejected every effort the Fish and Wildlife Service has made to reduce or remove federal protections from wolves.

[01:23:45] Speaker 01:
But Congress and legislatively delisted a portion of it.

[01:23:48] Speaker 01:
So there are still wolves within the lower 48 listing that are in Wyoming.

[01:23:54] Speaker 01:
But according to the service,

[01:23:56] Speaker 01:
that area, or at least large portions of unoccupied area, the areas that are exactly the areas that the Endangered Species Act says we need to protect the most.

[01:24:06] Speaker 01:
It's the areas at the margins of the population that matter.

[01:24:08] Speaker 04:
This gets back a little bit to the question that I had of Ms.

[01:24:11] Speaker 04:
Peppen for the service, and she disclaimed it, but it does seem to me just functionally that really a big moment in administration of the act is how the service defines the recovery plan.

[01:24:25] Speaker 04:
They initially list the species nationwide.

[01:24:29] Speaker 04:
Then they come in with a scientifically supported recovery plan, and they say, this is our goal for this species nationwide.

[01:24:38] Speaker 04:
We're going to create these, we hope, three separate populations, and maybe with some little local satellite populations, as we've seen in the record with respect to Minnesota whales, that are going to be, you know,

[01:24:53] Speaker 04:
buffered from harms to one another.

[01:24:55] Speaker 04:
When we look at the picture nationwide, that's going to count in our view as recovery.

[01:25:04] Speaker 04:
That seems sensible.

[01:25:06] Speaker 04:
What's wrong with that?

[01:25:08] Speaker 04:
And if that is sensible, and if there's nothing wrong with that, where did they go wrong in their effort to achieve that goal?

[01:25:14] Speaker 01:
There are a couple things that are wrong with that.

[01:25:16] Speaker 01:
First, the service worked from a nationwide or a lower 48 wide listing.

[01:25:22] Speaker 01:
And we've never had.

[01:25:23] Speaker 01:
Actually, wolves are fairly unique among native listed species.

[01:25:27] Speaker 01:
in that they've never had a recovery plan across the range that they were listed.

[01:25:32] Speaker 01:
In fact, the recovery plan we're working from here is severely outdated.

[01:25:35] Speaker 01:
It's 25 years old.

[01:25:37] Speaker 01:
It's forced to apply to a subspecies that's no longer even recognized.

[01:25:40] Speaker 01:
And what the service did was it applied recovery plans

[01:25:46] Speaker 01:
to portions of the range it listed.

[01:25:49] Speaker 01:
What we've never had is we've never had a national wolf strategy.

[01:25:53] Speaker 01:
The reason why I use those words, they aren't mine.

[01:25:56] Speaker 01:
They're the services.

[01:25:57] Speaker 01:
In the proposed rule in May 2011 on this listing, the service proposed a national, what it said it was going to do is it was going to engage in a national wolf recovery plan.

[01:26:07] Speaker 01:
We're going to say what happens in the Northeast, whether or not it should be declared as a DPS and protected.

[01:26:12] Speaker 01:
We're going to say what happens in the Pacific Northwest.

[01:26:15] Speaker 01:
We're going to discuss whether or not wolves can be expected to go into the southern portion of the Rockies, and that's a significant portion of the range, or it's not a significant portion of the range.

[01:26:24] Speaker 01:
And we're going to finalize that effort, the National Wolf Strategy, when we finalize this rule.

[01:26:31] Speaker 01:
And then they never did.

[01:26:34] Speaker 01:
Perhaps because it was most convenient and expedient to just deal with the Great Lakes.

[01:26:40] Speaker 01:
But recovery plans aren't static.

[01:26:43] Speaker 01:
Recovery plans can change, and they can even change as the listed status of an entity changes.

[01:26:49] Speaker 01:
And they can even change in the rare event where the service can justify changing the entity itself.

[01:26:54] Speaker 01:
So science suggests that a species can change to a subspecies, or the service can, by application of the DPS policy, declare a portion of a species a distinct population segment.

[01:27:04] Speaker 01:
And after doing that, the service can amend the recovery plan to address the needs of the listed entities.

[01:27:10] Speaker 01:
And the service did just that with respect to other entities.

[01:27:15] Speaker 01:
A question was posed to Ms.

[01:27:16] Speaker 01:
Pepin, has the service ever used the distinct population segment to split a species up listed in part?

[01:27:23] Speaker 01:
Yes, the service has a perfect example of the regulatory flexibility that the ESA does afford, even using DPSs, is the stellar sea lions.

[01:27:34] Speaker 01:
In 1990, the service listed stellar sea lions wherever they are found in the United States as threatened.

[01:27:40] Speaker 01:
In 1997, after promulgation of the DPS policy, the service split the sea lions into two stocks, an eastern stock and a western stock.

[01:27:47] Speaker 01:
And it was no secret at the time that the service felt that the threats of the species were greater in the western end of the range than the eastern end of the range.

[01:27:54] Speaker 01:
But the service said, we can meet the discreteness and significance criteria with the eastern stock and the western stock, so we're going to split them into two DPSs.

[01:28:03] Speaker 01:
And it did that in 1997.

[01:28:05] Speaker 01:
That's at volume 62 of the Federal Register pages 24345.

[01:28:10] Speaker 01:
After that, the service updated a recovery plan to describe the recovery goals for the Eastern Stock and the Western Stock.

[01:28:19] Speaker 01:
I should back up a second and say that the service uplisted the Western

[01:28:23] Speaker 01:
DPS at the time it split them.

[01:28:25] Speaker 01:
So the eastern DPS maintained its status, threatened as it was when it was listed entirely within the United States.

[01:28:33] Speaker 01:
The western stock got increased populations.

[01:28:36] Speaker 04:
Which species is it?

[01:28:38] Speaker 01:
The stellar sea lion.

[01:28:41] Speaker 01:
S-D-E-L-L-E-R, although they are also A-R Stellar as well, I promise you.

[01:28:47] Speaker 01:
And then after updating the recovery plan, the service in 2013

[01:28:52] Speaker 01:
delisted the DPS that was the Eastern DPS.

[01:28:56] Speaker 01:
No one is saying that the DPS can't be delisted.

[01:29:00] Speaker 01:
You just can't list a DPS.

[01:29:04] Speaker 01:
delist at the same time from within a larger entity without dealing with the larger listed entity that you put on the books and what the impact of removing protections from this core population are to your obligation to promote recovery.

[01:29:18] Speaker 01:
And respectfully, I disagree with the government that its obligation is just to prevent species extinction.

[01:29:23] Speaker 01:
That is equivalent under the essay.

[01:29:25] Speaker 01:
That is equivalent to saying if a species is not extinct in one place, it's not extinct anywhere else.

[01:29:31] Speaker 01:
The ESA does embody the goal of promoting recovery, including into unoccupied territory.

[01:29:39] Speaker 01:
The United States Supreme Court has instructed us as such in Tennessee Valley Authority versus Hill at 437 U.S.

[01:29:48] Speaker 01:
at page 184 of the service.

[01:29:49] Speaker 03:
Is there a definition of it?

[01:29:50] Speaker 03:
Because I kept trying to find a definition of extinction for purposes of this statute and whether

[01:29:58] Speaker 03:
you can declare it extinct in portions of the U.S., an animal extinct in portions of the U.S.

[01:30:05] Speaker 03:
or not.

[01:30:06] Speaker 01:
Yeah, I don't have a more precise answer, unfortunately, than Ms.

[01:30:08] Speaker 01:
Pepin, I'm sorry.

[01:30:10] Speaker 01:
I do think that extinction is a concept that is applied to the species once designated as an operation of the statute, but again,

[01:30:18] Speaker 01:
the same answer with respect to the interrelation of the threats analysis and the designation of DPS.

[01:30:23] Speaker 01:
It can't be the case that you create a statutory problem by engaging the statute, even if lawfully, in one regard, even if the service delists in one area and can declare it extinct in that area.

[01:30:38] Speaker 01:
If it's got a larger listed entity, it needs to deal with the conservation status of that species in that area.

[01:30:47] Speaker 01:
And so the Supreme Court has said the obligation under the ESA is to both halt and reverse the trend towards species extinction.

[01:30:56] Speaker 01:
The district court pointed out one way the statute operates to suggest that promotion of recovery is a real goal of the ESA by looking at the first factor of the threats analysis under section 4A1 and saying that it doesn't make sense

[01:31:14] Speaker 01:
the position that you focus only on current range and prevent extinction there, if a required portion of the analysis is to review threats throughout the present and potential future curtailment.

[01:31:32] Speaker 01:
Because absent potential future curtailment, there is no such thing as present curtailment of the range.

[01:31:38] Speaker 01:
You can't have analyzed threats in it if you're focused only on current population and not recovery.

[01:31:43] Speaker 01:
I would also point the court, for instance, to the definition of conservation.

[01:31:48] Speaker 01:
Under Section 7 of the Act, there are affirmative obligations placed on the government.

[01:31:53] Speaker 01:
One under 7A2 is to prevent further species impairment, to prevent jeopardy.

[01:31:58] Speaker 01:
Under Section 7A1, another obligation is to proactively promote conservation.

[01:32:05] Speaker 01:
And under the definition of conservation in the statute under section 16, USC 1532, conservation embodies the concept of recovery.

[01:32:14] Speaker 01:
In fact, Congress specifically said that means available to the agency in administering this act for the conservation mandate include propagation, live trapping, transplantation, i.e.

[01:32:29] Speaker 01:
reintroduction.

[01:32:31] Speaker 01:
And that's exactly what the service did in the mid-'90s in Yellowstone.

[01:32:36] Speaker 01:
In the mid-'90s in Yellowstone, there were no wolves in the Northern Rockies.

[01:32:41] Speaker 01:
That was unoccupied portions of the service's lost historic range.

[01:32:45] Speaker 01:
In other words, according to the service today, not a significant portion of its habitat.

[01:32:50] Speaker 03:
Can I ask you something on the question of reference to historic range?

[01:32:59] Speaker 03:
How do we define, or how do you think the service is supposed to define which history?

[01:33:05] Speaker 03:
How long a history to use?

[01:33:07] Speaker 03:
Do we go back to Columbus, pre-Columbus, Columbus?

[01:33:14] Speaker 03:
all the way up to the ESA's adoption?

[01:33:16] Speaker 03:
What time frame?

[01:33:19] Speaker 01:
I don't have a precise answer myself, but I think that the answer cannot be just current range, because I think that blue pencil is the word significant portion of the statute and just makes it range.

[01:33:29] Speaker 01:
But I also agree that it can't be all historic range forever.

[01:33:32] Speaker 01:
So I think no one is suggesting that the wolves need to be listed throughout their historic range back before settlement of North America, as Miss Pepin suggested.

[01:33:43] Speaker 01:
What we're saying is the words significant portion of the range need to be given real meaning.

[01:33:47] Speaker 01:
And that meeting may include areas of the range that are unoccupied but still viable, areas as inhabitable, areas of the range that even if inhabitable, might be these dispersal corridors between habitable areas.

[01:34:01] Speaker 06:
But if there are areas where the species cannot be... And what would that look like here?

[01:34:06] Speaker 01:
So for instance, within the larger listed entity that's being ignored here, the area of the Dakotas

[01:34:13] Speaker 01:
that falls right in between the eastern edge of the northern Rockies region, as the service has defined it, and the western edge of the Great Lakes region, as the service has defined it, is a viable area for dispersal of individual animals to exchange genes, and even includes some areas that the service has previously said

[01:34:31] Speaker 01:
are suitable for permanent occupation in North Dakota.

[01:34:34] Speaker 01:
And so this is an area that the Service should, I think, seriously consider as a significant portion of the species' range, which it will not do so if it has a categorical interpretation of the ESA that limits significant portion of the range to that area which is currently occupied.

[01:34:51] Speaker 04:
It seems like...

[01:34:57] Speaker 04:
Forgive me, because I think that there is something in the statute, like habitat is defined separately.

[01:35:04] Speaker 04:
But in common sense terms, it seems like one way of understanding range is as habitat that exists now but is not populated by a species.

[01:35:16] Speaker 04:
There's habitat that has yet to be, Chicago hasn't been built on it.

[01:35:21] Speaker 04:
And if there hadn't been endangerment or threat status imposed on these species, they would be there.

[01:35:30] Speaker 04:
But that's wrong?

[01:35:33] Speaker 01:
I'm not sure I understand the question.

[01:35:34] Speaker 01:
I'm sorry.

[01:35:34] Speaker 04:
Well, why don't we think of range not as where the animals did go historically or where they do go now, because one seems too broad and the other seems too narrow.

[01:35:43] Speaker 04:
Why isn't range

[01:35:44] Speaker 04:
potential range in the current world.

[01:35:47] Speaker 01:
I think that's what I'm describing.

[01:35:48] Speaker 01:
I think it is potential range, but I would also include areas that may not be inhabitable for purposes of occupation.

[01:35:55] Speaker 01:
I hear you.

[01:35:55] Speaker 01:
But that they go through.

[01:35:56] Speaker 04:
So genetic bridge kind of ideas.

[01:35:58] Speaker 01:
Potential range.

[01:36:00] Speaker 04:
Is there not a separate term habitat in the statute that would sort of

[01:36:07] Speaker 04:
Militate against reading species range as habitat Because it's just it's a separate and separately defined term or you're basically saying habitat in the sense of potential habitat is how you understand, right?

[01:36:20] Speaker 01:
That is and I think that's how the ESA understands it Are you distinguishing that from critical habitat?

[01:36:24] Speaker 03:
I think that's part of the confusion

[01:36:25] Speaker 01:
If you look at the term critical habitat, which the species has an affirmative obligation to designate for listed species, once they're listed, then you move on to 4A3 and there's shall designate critical habitat, although there are certain findings that the secretary could make that would allow it.

[01:36:41] Speaker 01:
her or him to not designate critical habitat.

[01:36:44] Speaker 01:
But the definition of critical habitat is in the statute.

[01:36:48] Speaker 01:
I don't think that purports to define critical habitat generally.

[01:36:53] Speaker 01:
But in terms of the definition of critical habitat, I think what's interesting is that a whole paragraph is dedicated to unoccupied portions of the range.

[01:37:01] Speaker 01:
So once a species is listed, there is an affirmative obligation to designate critical habitat, which by definition includes unoccupied portions of the range, except under the services view,

[01:37:14] Speaker 01:
unoccupied areas of the range are not significant.

[01:37:17] Speaker 01:
If unoccupied areas of the range are not a significant portion of the range, then the species can't be defined as threatened or endangered, right?

[01:37:24] Speaker 01:
Because it's the definition of threatened or endangered that includes the phrase in all or a significant portion of this range.

[01:37:30] Speaker 01:
So how do you give meaning to the definition of critical habitat?

[01:37:34] Speaker 01:
appropriate meaning to it, if you categorically exclude anywhere but the current range.

[01:37:40] Speaker 01:
And the service says, in this significant portion of the range policy that post-dates the rule, the service says, well, I think it was perhaps drafted by a lawyer who was thinking about defensibility.

[01:37:51] Speaker 01:
It says, well, as a categorical matter, we're not going to include unoccupied historic range

[01:37:58] Speaker 01:
as a significant portion of the range.

[01:38:02] Speaker 01:
But it's still important to the threats analysis.

[01:38:04] Speaker 01:
So we're still going to look at all those unoccupied areas, except as the district court correctly found here, the one-way direction of this analysis, the sort of myopic focus on ensuring the long-term viability of the current population in the current range doesn't comport even with the significant portion of the range policy.

[01:38:24] Speaker 04:
Hi, let me just circle back.

[01:38:25] Speaker 04:
I think I may have misspoken in talking about the recovery plan.

[01:38:30] Speaker 04:
What was the document or planning process that yielded the choice in repopulating the United States with wolves that chose to focus on these what are now, I guess, three

[01:38:46] Speaker 01:
areas.

[01:38:47] Speaker 04:
Where did that decision come from?

[01:38:49] Speaker 01:
I do think it comes from the services recovery plans.

[01:38:53] Speaker 01:
I do think that the recovery plans are where the service identified the core recovery areas.

[01:38:59] Speaker 04:
And they just did that from science, right?

[01:39:03] Speaker 04:
I mean, they looked at it and they thought, where are we going to make this most successful?

[01:39:06] Speaker 04:
That's right.

[01:39:07] Speaker 04:
We disagree.

[01:39:08] Speaker 04:
project on our hands.

[01:39:10] Speaker 04:
And they chose some places and not others.

[01:39:11] Speaker 01:
That's right.

[01:39:12] Speaker 01:
But in that context, when you say they didn't choose others, they didn't choose them for core recovery areas, areas where the species might start in small pockets.

[01:39:22] Speaker 01:
But then those small pockets become bigger pockets, as Minnesota has.

[01:39:26] Speaker 01:
They didn't say, we're also going to ignore everything else in the recovery plan.

[01:39:30] Speaker 01:
The recovery plans don't justify ignoring unoccupied areas of the range in the larger listing areas.

[01:39:36] Speaker 01:
So the service is to be applauded

[01:39:38] Speaker 01:
for using the best available science at the time the recovery plans were drafted.

[01:39:43] Speaker 01:
That's so long ago, maybe it's not the best available science now.

[01:39:45] Speaker 01:
They ran into a little bit of trouble on taxonomy with their proposed rule, but

[01:39:50] Speaker 01:
The service is to be applauded for saying, these are the areas where their core recovery areas, where we should start reintroduction.

[01:39:58] Speaker 01:
Could they have chosen the Northeast?

[01:40:00] Speaker 01:
Maybe so.

[01:40:00] Speaker 01:
Would it have been justifiable?

[01:40:02] Speaker 01:
Sure.

[01:40:02] Speaker 01:
But what we know is that they didn't say they were not going to permit the species to expand its range into unoccupied areas, or that that was impossible in the context of the recovery plans.

[01:40:13] Speaker 04:
And is your challenge to the final rule as backing away from the separate listing of C, Lycoun, is that a notice challenge, or is that a not-best-scientific-evidence challenge?

[01:40:28] Speaker 01:
Notably, it's not one that the district court rested its opinion on.

[01:40:33] Speaker 01:
with respect to the way that we brought the challenge, we did bring it as a best available science challenge.

[01:40:40] Speaker 01:
And the way that we sort of conceptualized that issue is, again, the service came up with this new species, found this heretofore non-recognized species.

[01:40:53] Speaker 01:
It was previously thought of as, they're linking it to a previously thought of subspecies.

[01:40:58] Speaker 01:
And they discovered magically

[01:41:00] Speaker 01:
that it happened to exist just outside the lines of the DPS that it drew in 2007.

[01:41:06] Speaker 01:
And so what that meant for it was that they were no longer designating a DPS at the same time to delist it of gray wolves, because they were just going to be delisting gray wolves everywhere they're found, because everything outside the line now is this newly recognized species.

[01:41:23] Speaker 01:
and a bunch of commentators, including pesky critters called scientists, said that's bonkers.

[01:41:29] Speaker 01:
And so they backtracked from it in the final rule.

[01:41:32] Speaker 01:
And I think the service again is to be applauded for backtracking because they have an obligation to use the best available science.

[01:41:39] Speaker 01:
But what they didn't do was they didn't say what species is at issue, which is kind of a fundamental thing when you're listing and delisting species.

[01:41:50] Speaker 01:
They could have on the one hand said,

[01:41:52] Speaker 01:
We think there's this new species.

[01:41:54] Speaker 01:
Well, now the science says there's not.

[01:41:56] Speaker 01:
So this is the species, and why the best available science says we should use this species.

[01:42:00] Speaker 01:
That's not what they did.

[01:42:01] Speaker 01:
What they said was, here's this species.

[01:42:04] Speaker 01:
The science says it's not there.

[01:42:05] Speaker 01:
So we're going to back away from it.

[01:42:07] Speaker 01:
And we're just going to proceed as we were planning to before.

[01:42:10] Speaker 01:
And we're not going to, and they're just sort of,

[01:42:13] Speaker 01:
going back, but not saying what the best available science is with respect to the species.

[01:42:19] Speaker 01:
In fact, what they're saying is we will leave that issue for another day.

[01:42:21] Speaker 06:
Great.

[01:42:22] Speaker 06:
Thank you.

[01:42:23] Speaker 06:
Unless there are further questions.

[01:42:24] Speaker 06:
Thank you.

[01:42:26] Speaker 06:
Ms.

[01:42:26] Speaker 06:
Peven, you asked for four minutes.

[01:42:28] Speaker 06:
We'll give you a back four.

[01:42:29] Speaker 06:
We took your time, so.

[01:42:33] Speaker 06:
For rebuttal.

[01:42:34] Speaker 02:
Thank you.

[01:42:36] Speaker 02:
I'd like to first address the issue of whether the service can leave a non-DPS remnant.

[01:42:41] Speaker 02:
This issue has been litigated before.

[01:42:43] Speaker 02:
In 2003, the service published a rule that divided up the entire lower 48th into three DPSs, leaving no DPS remnant.

[01:42:52] Speaker 02:
It was downlisted from endangered to threatened in the eastern DPS and the western DPS and remained endangered in the southwest.

[01:43:00] Speaker 02:
And the service was sued by Humane Society, Center for Biological Diversity, and a number of other environmental groups.

[01:43:06] Speaker 02:
And on the grounds that these DPSs were too large and included too much unoccupied territory, and the Vermont court

[01:43:15] Speaker 02:
I think counsel misspoke, it did not hold that the service could not leave a non-DPS remit.

[01:43:21] Speaker 02:
On the contrary, the service was justifying the unoccupied territory within the DPS on the grounds that it could not leave a non-DPS remit.

[01:43:30] Speaker 02:
And the Vermont court held, yes, you can.

[01:43:33] Speaker 02:
There's nothing in the statute that says you can't.

[01:43:36] Speaker 02:
So we've kind of come full circle in terms of- Well, hang on here.

[01:43:40] Speaker 03:
That was a district court decision, right?

[01:43:41] Speaker 03:
Yes.

[01:43:43] Speaker 03:
You chose not to appeal it.

[01:43:45] Speaker 03:
Yes, it wasn't appealed.

[01:43:49] Speaker 02:
Right, and we are abiding by that in this case.

[01:43:51] Speaker 03:
No, well, that's what I'm trying to figure out because what's to stop the service from turning around after it's sort of Swiss cheese a species through creating these segments and then going, wow, we listed this species.

[01:44:09] Speaker 03:
nationwide, and now the thing that's left there is not a species, it's not a subspecies, and it's not a segment, oops, we will delist on that basis.

[01:44:21] Speaker 02:
That can happen.

[01:44:23] Speaker 02:
What?

[01:44:24] Speaker 02:
Is that the plan here?

[01:44:25] Speaker 02:
I don't, there is no.

[01:44:27] Speaker 03:
They quoted language from a rule, a proposed rule.

[01:44:30] Speaker 02:
Yeah, that rule was proposed in 2012 or 13.

[01:44:31] Speaker 02:
Is it withdrawn?

[01:44:34] Speaker 02:
And it hasn't really gone anywhere.

[01:44:36] Speaker 03:
Is it withdrawn?

[01:44:37] Speaker 02:
No, it's not withdrawn, but I think the time has run on which they can act in it, so it's effectively a deadline.

[01:44:42] Speaker 03:
So does that not state the services position that it can Swiss cheese these

[01:44:46] Speaker 03:
listed species.

[01:44:48] Speaker 02:
The services position is that it can do what the statute allows it to do which is to define a DPS in accordance with the DPS policy and treat that as a species under the Act.

[01:44:58] Speaker 03:
This goes to the very question of whether your reading of the segment policy is accurate and that is because you have to read the statute as a whole we can't just look at the single definition of species as you've been pointing to we have to look at the whole listing and delisting process and if the

[01:45:16] Speaker 03:
consequence of your interpretation of the segmenting authority is that every time you create a segment, unless you divide the entire listed species up into segments, every time you pull one segment out, no matter how small, imagine you had just done Minnesota as you had originally here.

[01:45:38] Speaker 03:
then that entire listing for everything but Minnesota collapses.

[01:45:43] Speaker 03:
It's improperly listed as a statutory construction matter under the Endangered Species Act because that leftover, which is everything other than we'll say Minnesota, is not a species, it's not a subspecies, and it's not a segment.

[01:45:58] Speaker 02:
It might and might not be.

[01:45:59] Speaker 02:
That would be a factual question.

[01:46:01] Speaker 02:
Is there a population in that remnant that is... There is no species minus Minnesota.

[01:46:08] Speaker 03:
Well, that's like a DPS.

[01:46:08] Speaker 02:
It's not a subspecies.

[01:46:09] Speaker 02:
I mean, in the original listing in 1978.

[01:46:12] Speaker 03:
So you would have made the findings for a segment.

[01:46:14] Speaker 02:
They created two species, Minnesota and the other 47 plus Mexico.

[01:46:19] Speaker 02:
And they used the proto-DPS language.

[01:46:22] Speaker 02:
It was essentially similar authority, at least with respect to vertebrates, to list a group of animals in common spatial arrangement.

[01:46:28] Speaker 06:
Well, that might have been mistaken then as well, right?

[01:46:30] Speaker 02:
And that might have been mistaken then.

[01:46:32] Speaker 02:
Yes, certainly Minnesota had a group of animals in common spatial arrangement query whether the other 47 did.

[01:46:39] Speaker 02:
But they exist and they have to be dealt with.

[01:46:43] Speaker 02:
And the Minnesota species has been dealt with through this rule.

[01:46:46] Speaker 02:
It has expanded, it is viable, it is recovered.

[01:46:49] Speaker 02:
And I'd like to address what recovery means.

[01:46:52] Speaker 02:
It is defined in 50 CFR 402.2 recovery is defined, and it means not in danger of extinction.

[01:47:02] Speaker 03:
Is extinction defined anywhere?

[01:47:04] Speaker 02:
Not that I know of, Your Honor.

[01:47:05] Speaker 03:
Isn't that critical?

[01:47:06] Speaker 02:
How can I know what that means?

[01:47:08] Speaker 02:
I think it has its common meaning then.

[01:47:11] Speaker 02:
Extinct means extinct, not

[01:47:12] Speaker 02:
No, no, no.

[01:47:13] Speaker 03:
I don't know what the common meaning is.

[01:47:14] Speaker 03:
If you talk about does extinct mean, I mean, does it mean extinct in the U.S.

[01:47:20] Speaker 03:
as a whole or does it mean extinct in 50% of the United States?

[01:47:27] Speaker 02:
It means the species.

[01:47:27] Speaker 02:
Whatever species you're analyzing under 401A.

[01:47:31] Speaker 03:
It is that species so it could be the whole taxonomic species worldwide It could be the whole sub species worldwide or it could be geographically delimited in which case that's a DPS understand But when you have the situation you have here where you have first listed and found endangered a large a species as a species and Then you come in and pull out a pocket

[01:48:01] Speaker 03:
of it?

[01:48:03] Speaker 03:
Isn't it incumbent upon you to address not just the status of that pocket, but to address the status of the remnant?

[01:48:13] Speaker 03:
What is it?

[01:48:15] Speaker 03:
What is the status?

[01:48:16] Speaker 03:
And two, address in the process of pulling that pocket out, are we dooming the listed species to extinction everywhere but that pocket?

[01:48:32] Speaker 02:
Do you have to just address those things?

[01:48:35] Speaker 02:
I'm going to try.

[01:48:36] Speaker 03:
I mean, do you, as part of your regulatory process, have to address both aspects of that?

[01:48:42] Speaker 03:
Do you agree?

[01:48:44] Speaker 02:
No, I don't agree.

[01:48:45] Speaker 02:
If there is an impact, which in the ordinary case there would not be because of the definition of DPS, a DPS must be discrete as well as significant.

[01:48:53] Speaker 02:
Discrete is defined in the DPS policy as markedly separate from other populations of the same taxon.

[01:49:00] Speaker 02:
I don't say it's factually impossible, but it would be factually rare for the delisting of one DPS to have much of an impact at all, any impact on the status of the remaining population in another listing, because it wouldn't be a DPS unless it were markedly separate.

[01:49:16] Speaker 02:
And that is certainly the case here.

[01:49:18] Speaker 02:
400, 600 miles between actual wolves, 400 miles between borders of this population and the nearest US population.

[01:49:25] Speaker 02:
Although I would like to point out it's extremely well connected to a population of 6,000 wolves in Canada, so there are not genetic connectivity issues with this population.

[01:49:35] Speaker 03:
But why did you have to draw, you pulled this out and you didn't just pull out Minnesota.

[01:49:38] Speaker 03:
It changed from what it had been before, I forget the language of the closed area or whatever it was before.

[01:49:44] Speaker 03:
You pulled out now nine states.

[01:49:48] Speaker 03:
and so why did you necessarily changed the remnant listing was what you had before because you pulled out nine and you have to address what is what we had before minus nine what is it now

[01:50:03] Speaker 03:
And what is the impact of the separation on the extinction, endangerment, or threatened status of that remnant?

[01:50:11] Speaker 03:
I don't understand how you can tear things apart and only have to address the one half.

[01:50:15] Speaker 02:
Because the protections of the act apply to the species, not the range.

[01:50:19] Speaker 02:
And the service has made that very clear.

[01:50:21] Speaker 02:
You can find that in the statutory addendum at page 837.

[01:50:25] Speaker 03:
OK, but both have been listed.

[01:50:27] Speaker 03:
I mean, you didn't delist the species when you did this.

[01:50:32] Speaker 02:
of wolves in the lower 47 listing outside of Minnesota.

[01:50:37] Speaker 02:
It's the population that's protected, not the state of South Dakota.

[01:50:41] Speaker 02:
It's the wolves.

[01:50:42] Speaker 02:
And this listing... It's the species.

[01:50:43] Speaker 03:
I mean, you've just told us many times that it protects species.

[01:50:46] Speaker 03:
There's no population that's protected.

[01:50:47] Speaker 03:
They talk about species.

[01:50:49] Speaker 03:
The statute says species, subspecies, and segments.

[01:50:52] Speaker 02:
That's what's listed.

[01:50:53] Speaker 02:
Species, the population is the species.

[01:50:56] Speaker 02:
It's not consulate worldwide, which is a very healthy, thriving species.

[01:51:00] Speaker 02:
It's not any subspecies.

[01:51:01] Speaker 02:
The lower 47 listing is also a proto-DPS.

[01:51:05] Speaker 02:
It's a geographically delimited listing of a species.

[01:51:08] Speaker 02:
So it's a population that is protected.

[01:51:11] Speaker 06:
And under any listing... I'm sorry, it's geographically delimited to where?

[01:51:15] Speaker 02:
the United States, excluding Minnesota, and also includes Mexico.

[01:51:20] Speaker 02:
And not Alaska, continental 48 states.

[01:51:23] Speaker 02:
And so, sorry.

[01:51:25] Speaker 02:
I'm sorry, Your Honor, I lost the third question.

[01:51:30] Speaker 03:
Well, it was back to whether you have to actually go through the exercise of saying what that is and

[01:51:35] Speaker 03:
with the impact on this?

[01:51:37] Speaker 02:
So as a factual matter, with the exception of Isle Royale, which has never been considered as part of the DBS population, none of the population of the other listing, the lower 47 listing, is impacted by this rule.

[01:51:52] Speaker 02:
That is a factual fact in this case, well supported, not really questioned, and it's also

[01:51:59] Speaker 02:
almost a necessary condition of being a DPS in the first place.

[01:52:02] Speaker 02:
If this population was intermingled with other wolf populations such that its delisting would affect them, it probably wouldn't be a DPS in the first place.

[01:52:11] Speaker 02:
And if for some reason it was, it would be a very different case because you'd have a situation where this was affecting a different species, a different population, but it's not.

[01:52:20] Speaker 04:
How do you respond to the suggestions in the record that there is some genetic exchange with the Rocky Mountain wolves across northern North Dakota?

[01:52:28] Speaker 02:
There's no record support for that having happened.

[01:52:31] Speaker 02:
There is a very well-established genetic exchange with the wolf population in Ontario and Saskatchewan, but we know of no meeting of the Western Great Lakes DPS and the Northern Rocky Mountain DPS.

[01:52:46] Speaker 04:
Except through Canada.

[01:52:47] Speaker 02:
Except for Canada.

[01:52:49] Speaker 02:
I suppose it's possible, but it's mostly the wolves that are already in Canada, closer to the Western Great Lakes DPS that are probably the ones breeding.

[01:52:56] Speaker 03:
Is there no record because you didn't look?

[01:52:58] Speaker 03:
Or is there no record because you looked and there was no evidence?

[01:52:59] Speaker 02:
No, no, these wolves have been radio collared and tracked.

[01:53:01] Speaker 02:
I mean, that's how we know where they've gone.

[01:53:03] Speaker 02:
I mean, not every wolf is radio collared, so there could be some things we don't know about.

[01:53:07] Speaker 02:
But they've been very thoroughly studied and monitored.

[01:53:11] Speaker 02:
I did want to clarify that I did not intend to disavow the recovery plan.

[01:53:15] Speaker 02:
The recovery plan is very important.

[01:53:17] Speaker 04:
No, I didn't think you did.

[01:53:19] Speaker 04:
I was just talking about that as the reason why these areas have been focused on FWS activity, even though the listing was nationwide plus a separate Minnesota listing.

[01:53:34] Speaker 04:
And just because that really seems to be an extraordinarily important benchmark.

[01:53:39] Speaker 04:
If you're saying, no, not nationwide,

[01:53:41] Speaker 04:
Let's look at the populations that are thriving.

[01:53:44] Speaker 04:
It seems to me that what you're implicitly doing is saying that was our plan, and now we succeeded in fulfilling it.

[01:53:50] Speaker 02:
Right.

[01:53:51] Speaker 02:
As a factual matter, in this case, the criteria of the recovery plan have been vastly exceeded.

[01:53:55] Speaker 02:
The goals were a stable population in Minnesota of

[01:53:59] Speaker 02:
1200 to 1400.

[01:54:00] Speaker 02:
It was about 2900 at the time of delisting.

[01:54:03] Speaker 02:
And then they needed a population of at least 100 in, at least 100, or if it's within 100 miles, that population is close to 1400 in Wisconsin and Michigan.

[01:54:13] Speaker 02:
So the goals of the recovery plan have been vastly exceeded and the statute does

[01:54:18] Speaker 02:
say about recovery plans that they are to consist of objective, measurable criteria, which, when met, would result in a determination, in accordance with the provisions of Section 4, that the species be removed from the list.

[01:54:30] Speaker 02:
So this was always what defined a recovering species.

[01:54:33] Speaker 04:
And the situation in New Mexico is they're still endangered.

[01:54:36] Speaker 04:
It is a separate species in the sort of biological sense?

[01:54:42] Speaker 04:
It's a separate subspecies that definitely is so that definitely is everything else though.

[01:54:47] Speaker 02:
No gray wolves everywhere else There are different the controversy about

[01:54:52] Speaker 02:
subspecies is really limited to the western Great Lakes and to the eastern wolves.

[01:55:00] Speaker 04:
There's not as an affirmative matter a ground on which Fish and Wildlife is willing to go forward and say it's a separate species.

[01:55:05] Speaker 04:
It's a separate subspecies.

[01:55:08] Speaker 04:
So why are you not seeking delisting nationwide right now?

[01:55:14] Speaker 04:
It sounds like you think you can.

[01:55:19] Speaker 04:
Why are you not doing that, though?

[01:55:20] Speaker 04:
Why this gymnastics to get new legal authority and DPS is for defining and delisting?

[01:55:33] Speaker 04:
difficulty in fitting it within the rubric of the Endangered Species Act and the common sense understanding of species and the notion that we should look at the big picture, that you should look at the big picture.

[01:55:44] Speaker 04:
I'm just trying to get a sense of why that's not what we're arguing about.

[01:55:50] Speaker 02:
authority should give them the authority to be able to manage it the way they're trying to manage it.

[01:55:55] Speaker 02:
And Mr. Henry suggested that there is ample flexibility even if it's interpreted so that you can't list a DPS that is not endangered or threatened.

[01:56:04] Speaker 02:
But that is simply not the case.

[01:56:05] Speaker 02:
It would not take this case.

[01:56:08] Speaker 02:
This population is recovered.

[01:56:10] Speaker 02:
It is viable.

[01:56:12] Speaker 02:
The definition of recovered, again, is not endangered.

[01:56:14] Speaker 02:
It is not endangered.

[01:56:15] Speaker 02:
So we couldn't divide the whole United States into DPSs and then find them endangered or threatened.

[01:56:21] Speaker 04:
But that just seems like a more reason to say, let's not get into dividing anything.

[01:56:26] Speaker 04:
Let's look at the picture.

[01:56:27] Speaker 04:
We've achieved more than achieved the aims of the original recovery plan.

[01:56:32] Speaker 04:
Let's look at the whole country D-list.

[01:56:35] Speaker 04:
Why not?

[01:56:36] Speaker 02:
In some cases, and I think in this case it would be very difficult, because you've got these different populations with different statuses, and in all of the other species that the Fish and Wildlife Service and the National Marine Fisheries Service have to manage, you might have, I mean, here we have three.

[01:56:51] Speaker 02:
There are some species with 12 different populations.

[01:56:55] Speaker 02:
And if they have to devote every time they want to recognize the recovery or the lack of recovery and the need to up list one population, if they have to re-examine the entire species, that is a tremendous

[01:57:10] Speaker 02:
tying of their hands, it's a tremendous diversion of resources that keeps them from managing the species.

[01:57:15] Speaker 02:
As Congress intended, as we can see from the 1973 legislative history, they intended to give the species, when they gave that authority to list a group of wildlife in common spatial arrangement, which evolved into the DPS language, they intended for Congress, for the Fish and Wildlife Service, to be able to list, delist, uplist, downlist species

[01:57:38] Speaker 02:
with a more local sensitivity.

[01:57:41] Speaker 02:
So the problem with the previous statutes was it had to be listed everywhere, no matter how much local variation there was in the status of the species.

[01:57:49] Speaker 02:
There was just an on-off switch.

[01:57:51] Speaker 02:
And that was part of what the, that was a problem that the endangered species fixed by providing for different levels of species that can be listed.

[01:57:59] Speaker 03:
When you're protecting

[01:58:02] Speaker 03:
as species, however any of those definitions apply in formulating plans.

[01:58:07] Speaker 03:
I assume you have to take into account the impact of what you're doing on

[01:58:15] Speaker 03:
one species under the ESA on, say, another endangered or threatened species that happens to be in the same area or a neighboring area?

[01:58:24] Speaker 02:
I think it's a matter of fact.

[01:58:26] Speaker 02:
They do.

[01:58:26] Speaker 02:
Whether they have to is a difficult statutory question, because the five factors under Section 4A that have to be considered do not include impact on other species.

[01:58:38] Speaker 03:
Even other endangered ones, really?

[01:58:39] Speaker 02:
Yeah.

[01:58:40] Speaker 02:
Now, having said that, I think they probably do, as a matter of fact.

[01:58:45] Speaker 03:
They don't have a position, though, on whether they can adopt a plan to revive one species that destroys another that's listed?

[01:58:52] Speaker 02:
If there is a position, I don't know it, because it hasn't been an issue in this case, and therefore I'm not aware.

[01:58:59] Speaker 02:
You've never encountered anything like that?

[01:59:00] Speaker 02:
No.

[01:59:02] Speaker 02:
But in this case, as a factual matter and almost necessarily as a legal matter because it's part of the definition of a DPS, this population is markedly separate from other populations of the same taxon in the United States and therefore does not impact their recovery.

[01:59:17] Speaker 04:
And what's your best authority for your power to recognize a DPS for purposes of delisting within a broader national endangerment finding?

[01:59:31] Speaker 02:
The DPS policy itself, Section 4A1 of the statute, the definition of species, and I would say Chevron.

[01:59:42] Speaker 02:
The agency on all of the statutory interpretation issues in these cases has put forth a formal agency interpretation subject to notice and comment.

[01:59:51] Speaker 02:
Interpreting statutory language that courts have acknowledged is ambiguous, both in terms of significant portion of its range and also

[02:00:00] Speaker 02:
the, well, at least some courts have held that it's ambiguous whether a DPS can be delisted.

[02:00:06] Speaker 02:
We don't think it's ambiguous.

[02:00:07] Speaker 02:
We think we unambiguously can.

[02:00:08] Speaker 02:
But if it's ambiguous, the service has put forward in a notice and comment rule making its interpretation.

[02:00:14] Speaker 02:
And so that is the authority for saying that it can, in addition to the documents it relied upon, of course, the DPS policy and the statute, which is ultimately

[02:00:23] Speaker 02:
the source of all authority here.

[02:00:25] Speaker 02:
The statute gives the service, the authority to make determinations whether a species is endangered or threatened.

[02:00:32] Speaker 02:
It has made that determination.

[02:00:33] Speaker 02:
And the fact that maybe it could be even more plentiful or even more widespread is not part of that determination.

[02:00:40] Speaker 02:
It is not endangered.

[02:00:41] Speaker 02:
It is not threatened.

[02:00:42] Speaker 04:
You didn't include any courts in your list of authorities.

[02:00:44] Speaker 02:
Well, Chevron.

[02:00:47] Speaker 02:
Yeah.

[02:00:48] Speaker 02:
There are northwest

[02:00:51] Speaker 02:
Two courts in the Ninth Circuit, one is Trout Unlimited versus Lone, and the other is Northwest Ecosystem Alliance versus something, and they are both cited in our brief, do uphold the services interpretation of the DPS authority as meaning that if it's discrete and it's significant, then it is a DPS, and then the determination of its conservation status is a separate next step.

[02:01:16] Speaker 02:
It's not part of what makes a DPS, it's just something you do with a DPS.

[02:01:21] Speaker 06:
All right.

[02:01:21] Speaker 06:
Thank you very much.

[02:01:22] Speaker 06:
Thank you very much.

[02:01:24] Speaker 06:
Mr. Gamble, we'll give you one minute if you need it.

[02:01:28] Speaker 06:
If you don't need it, you don't have to use it.

[02:01:33] Speaker 06:
Great.

[02:01:33] Speaker 06:
Thank you very much.

[02:01:34] Speaker 06:
That will not affect our judgment whatsoever.

[02:01:37] Speaker 06:
But Mr. Lister, we'll give you a minute if you need it.

[02:01:44] Speaker 06:
If you need it.

[02:01:44] Speaker 06:
Oh, that's yours.

[02:01:46] Speaker 06:
But one minute.

[02:01:50] Speaker 07:
I filed a petition to recognize and delist the Western Great Lakes Distinct Population Segment.

[02:01:55] Speaker 07:
We were entitled to an answer, a yes or no answer.

[02:01:58] Speaker 07:
The service gave us that answer, and the many interesting things we can debate as to what might be the optimal policy.

[02:02:06] Speaker 07:
But we believe we met the criteria for delisting, and therefore the service should be affirmed.

[02:02:11] Speaker 06:
Great.

[02:02:11] Speaker 06:
Thank you very much.

[02:02:12] Speaker 06:
The case is submitted.