[00:00:00] Speaker 00: Case number 20-5161, Phoenix Herpetological Society, Inc. [00:00:06] Speaker 00: Appellants versus United States Fish and Wildlife Service et al. [00:00:10] Speaker 00: Mr. Coles for the appellant, Mr. Richmond for the appellate. [00:00:16] Speaker 03: Good morning, counsel. [00:00:18] Speaker 01: Good morning, your honor. [00:00:20] Speaker 01: Frederick Coles III, if it may please the court. [00:00:24] Speaker 01: I represent the appellant in this manner, Phoenix Herpetological Society, Inc. [00:00:30] Speaker 01: and we are here to set aside and vacate the granting of a joint motion basically by the agency to deny my client a renewal to its captive bred wildlife registration and to deny a second or companion application to export Grand Cayman Blue [00:00:59] Speaker 01: iguana to the Alberg Zoo in Alberg, Denmark. [00:01:05] Speaker 01: We look at this application and take the position that the agency's decision making process denying the two applications was arbitrary, capricious and unreasonable. [00:01:20] Speaker 01: Secondly, we think that the district court upholding of those decisions is factually and fatally wrong in that there's a lack of transparency as it relates to the process that the agency utilized and invoked in order to deny the applications. [00:01:40] Speaker 01: And I think there's one central issue that is related [00:01:45] Speaker 01: directly to both of the applications, both the denial of the renewal of the CBW and the denial of the export. [00:01:53] Speaker 01: And it has to do with the agency's position that the zoo, meaning PHS, did not meet its burden as to establishing that the founder stock of Cayman iguanas were legally brought into the United States. [00:02:11] Speaker 01: It takes the position that [00:02:15] Speaker 02: Well, let me divide them for a moment. [00:02:18] Speaker 02: On the export question, why isn't the agency's department's decision that sending two blue aganas to Denmark doesn't satisfy the criteria of the statute because of the genetic problems, given the fact there are no blue agana [00:02:45] Speaker 02: in Denmark. [00:02:46] Speaker 02: Isn't that enough to deny your export request? [00:02:51] Speaker 01: We don't believe that it is, Your Honor, based upon the fact that the agency's decision in that regard was not based upon the best scientific information or data. [00:03:03] Speaker 01: It is true that the Albert Zoo does not have any blue iguana in its possession. [00:03:10] Speaker 01: But the purpose of both the agency [00:03:14] Speaker 01: and the exporting regulations is to help to propagate the conservation, protection, and promulgation of the species and conservation of the species. [00:03:25] Speaker 01: The Albert Zoo, just like my client, is a well-established zoo. [00:03:30] Speaker 01: It's capable of raising and breeding the subject iguanas. [00:03:35] Speaker 01: The agency takes the position that because the two animals that are subject to export [00:03:44] Speaker 01: come from the same clutch. [00:03:46] Speaker 01: What the agency is doing, it's comparing the breeding of reptiles to that of mammals and or birds when the breeding of reptiles, it's a different category. [00:04:01] Speaker 01: The information that was provided to the agency, it cherry picked information to overlook from the authority that it relied upon, that being Fred Burton, [00:04:13] Speaker 01: that inbreeding did in fact occur not only on the island itself in the wild, but also while they had certain iguanas in their protective captive possession that inbreeding did in fact take place. [00:04:31] Speaker 01: That's recognized in a couple of emails that are part of the administrative record coming from Fred Burton that were available to the agency to review. [00:04:42] Speaker 01: the agency chose to overlook that component of the email and instead focused on another portion that the lack of genetic diversity without any support for such was the basis for, in our opinion, is the basis upon which they're denying the application. [00:05:04] Speaker 01: And as much as it's not supported by the facts of the record and it's not supported by any literature [00:05:11] Speaker 01: of any type of scientific treaty, we take the position that that decision is in fact unreasonable, capricious, and just flat wrong. [00:05:22] Speaker 02: Now going to the registration question, after you have submitted various explanations with respect to the export, why wasn't the agency [00:05:37] Speaker 02: legitimate including we just don't trust you anymore. [00:05:42] Speaker 02: You gave three different wildly different explanations with respect to the ancestry of these animals. [00:05:53] Speaker 01: If I may your honor this was an issue that I wasn't that my briefing [00:05:59] Speaker 01: when I say my briefing, because I substituted in as your honors are aware, did not particularly address. [00:06:07] Speaker 01: The reason why I didn't address it is because there was an ongoing fight from my review of the record between the agency, between another individual named, I believe it's Mr. Schumacher, who my client had originally engaged [00:06:24] Speaker 01: certainly a while prior to this particular application. [00:06:31] Speaker 01: Then there was a brouhaha as to Mr. Schumacher's involvement. [00:06:35] Speaker 01: Ultimately, my client terminated Mr. Schumacher with regards to the application process. [00:06:42] Speaker 01: There's also information that Mr. Schumacher gave incorrect information to the agency. [00:06:51] Speaker 01: while my client was in fact hospitalized in ICU as a result of being bitten by a poisonous snake. [00:06:58] Speaker 01: When he comes out of the hospital, he owns up to the mistake that was made by Mr. Schumacher and Bears himself. [00:07:05] Speaker 01: And that's how we get to the various explanations that your honor asked me about. [00:07:12] Speaker 01: But from our position, we are consistent in what it is that we're asking for. [00:07:17] Speaker 01: And we don't believe that [00:07:19] Speaker 01: Those missteps are such that the agency's denial as to Mr. Blair's affidavit should be taken in the same vein. [00:07:33] Speaker 03: So let me just follow up a little bit on the first point that you were discussing with Judge Silverman about the genetic problem. [00:07:42] Speaker 03: Yes. [00:07:42] Speaker 03: You certainly are correct that Mr. Burton talks about inbreeding happens. [00:07:47] Speaker 03: But the question that the agency had was not does it happen, as it were, but is this something that's desirable in both the propagation of the species and not harming it? [00:08:09] Speaker 03: In other words, a different question. [00:08:11] Speaker 03: Things happen, but that doesn't necessarily mean that's what you want to [00:08:17] Speaker 03: see happen when it's on your watch? [00:08:24] Speaker 01: I think the best way that I can answer your honor's question is this. [00:08:28] Speaker 01: The agency certainly has not pointed to any information, any scientific data, any type of reliable scientific information to say that such inbreeding does not occur. [00:08:42] Speaker 01: And iguanas in their natural habitat [00:08:45] Speaker 01: even though these animals are in fact in a conservation program within a protected environment, if it's happening in the wild, the fact that it happens in the wild, and even Mr. Burton acknowledged that it did in fact happen while animals of the same species were in captivity, [00:09:07] Speaker 01: The agency's position here is not supported by any scientific information to show that there would be a detriment to any animals that were in fact engaged in any form of inbreeding. [00:09:21] Speaker 03: So the court defers to the scientific and expert judgments. [00:09:32] Speaker 03: I'm just trying to understand, is your position not that the agency was required to acknowledge that there's nothing wrong with inbreeding, but that in order to deny your client's application, it had to point to scientific evidence that inbreeding is harmful to the species? [00:09:55] Speaker 01: I think, not I think, but my position [00:10:01] Speaker 01: slightly different than that and I'm not trying to sort of put it in the realm of engaging in semantics, but basically our position is there is no scientific information that shows that inbreeding among reptiles and specifically among blue caiman iguana [00:10:21] Speaker 01: is detrimental to the perpetuation, conservation, and preservation of the species in an instance where those same animals are in fact listed as endangered species. [00:10:34] Speaker 03: But that's what I'm getting at, that it's listed in appendix one now, and the statute requires the agency to find that this is going to enhance propagation of the species. [00:10:51] Speaker 03: Can the court say it was wrong to conclude that that would not be consistent with the statutory standard? [00:11:01] Speaker 01: I think the court has the authority to conclude that that is wrong if that position by the agency is not supported by scientific information. [00:11:10] Speaker 03: Well, as you understand, though, that... Go ahead. [00:11:14] Speaker 03: Who's trying to talk here? [00:11:16] Speaker 02: Excuse me. [00:11:17] Speaker 02: Not only is this a scientific question, it's a predictive judgment on the part of the agency to which we typically defer as well. [00:11:30] Speaker 02: In other words, if you don't know one way or another, just the risk as Judge Rogers is suggesting is a legitimate basis upon which the agency would deny the export license. [00:11:47] Speaker 01: I am out of time, if Your Honor, I would like to respond. [00:11:51] Speaker 01: Please respond, yeah. [00:11:52] Speaker 01: Yes. [00:11:53] Speaker 01: Our position and the record supports it. [00:11:56] Speaker 01: I think it's even acknowledged in the agency's brief that my client started with initially four Grand Cayman blue iguana. [00:12:08] Speaker 01: And he has grown the population through its conservation efforts to a total of 22 iguanas. [00:12:16] Speaker 01: There's been no incidents of any type of deformities that have been noted. [00:12:21] Speaker 01: There have been no incidents of any type of bad behavior problems, deficiencies or anything with respect to my client's care. [00:12:33] Speaker 01: conservation and preservation of these animals. [00:12:36] Speaker 01: He is now based upon moving forward with promulgating the species to assist the Albert Zoo and basically engaging in the same course of conduct that it did, which in fact has been successful and is in fact contributing to the promulgation of the species by having increased the number from at least four up to 22 and possibly more as we're here today. [00:13:05] Speaker 03: So I guess my last question here is your client clearly had the burden and you don't deny that. [00:13:13] Speaker 03: So that while I agree, I don't read any criticism as you're suggesting of what your client has done here. [00:13:24] Speaker 03: The agency was looking at an export to a zoo that has no iguanas and [00:13:35] Speaker 03: this inbreeding concern and given what the statute is talking about in terms of enhancing propagation of the species, why it's not for sort of expertise and as Judge Silverman points out, predictive reasons, the agency could reasonably deny the permit. [00:14:03] Speaker 01: I, your honor is correct that we do have the burden. [00:14:07] Speaker 01: I think we certainly by review of the record, I think that we have in fact satisfied our burden. [00:14:14] Speaker 01: I think there's an ample amount of information with respect to satisfying that burden as it's include, as it's addressed specifically. [00:14:24] Speaker 01: And I believe it's the Silverstein forensic report, which when, [00:14:30] Speaker 01: You look at the agency's denials, there's no reference to that. [00:14:35] Speaker 01: There's no taking into consideration any of that. [00:14:38] Speaker 01: There's no refutation of anything that was put forth in that report that addresses the very questions that your honor asked. [00:14:46] Speaker 01: In addition to that, [00:14:49] Speaker 01: I think what the agency is doing is the agency is creating an unreasonable and an impossible hurdle as it relates to the export of these animals. [00:15:01] Speaker 01: The agency relies upon the position while the outboard zoo has no blue caiman iguanas in its possession. [00:15:10] Speaker 01: There was a point in time when my client had no blue caiman iguanas in its possession, and yet it has sufficiently added to the number of such animals in existence. [00:15:24] Speaker 01: Similarly, every facility that's going to engage in a conservation program has to start at step one. [00:15:33] Speaker 01: Step one is in fact the first [00:15:36] Speaker 01: set of animals that are capable of breeding and assisting in population growth. [00:15:42] Speaker 01: To deny that opportunity to a well-established zoo where there's information in the record that certainly shows the criteria and the qualifications of the people who operate the zoo, there's certainly nothing deficient as it relates to their qualifications. [00:16:01] Speaker 01: And secondly, what the agency is doing [00:16:05] Speaker 01: without supporting it, but it's sort of implicit in their denials and in their rationale is they're trying to make and assert and inject into this equation the position that the raising of Grand Cayman blue iguana is somewhat unique and distinct from the breeding of any other [00:16:33] Speaker 01: type of lizard or other iguana, and the record and the scientific record does not support that position. [00:16:44] Speaker 07: Can I ask on the lawful acquisition point, your brief, as I understand it, you assume on the law that it's your burden to show that the parent stock [00:17:02] Speaker 07: was lawfully acquired and you argue on the facts that you discharged that burden. [00:17:08] Speaker 07: Is that a fair characterization of your position? [00:17:14] Speaker 01: Just so that we're clear and that I didn't misunderstand your question, our position is that the founder stock came into the country prior to the enactment of either the laws and the grant came in here and CITUS. [00:17:29] Speaker 07: You haven't made the broader argument that that question is irrelevant, is legally irrelevant. [00:17:39] Speaker 01: I didn't look at it as a question of being legally irrelevant. [00:17:43] Speaker 01: I looked at it as a question that was being raised with no basis by the agency. [00:17:49] Speaker 07: Because you think you think you proved lawful import of the parent stock that they came in before the listing. [00:17:58] Speaker 01: Yes, I believe that my client has sufficiently met its burden in that regard, and I don't think there's anything in the record that contradicts that in any way. [00:18:08] Speaker 07: Okay, thank you. [00:18:11] Speaker 03: All right, we'll give you some time on rebuttal. [00:18:15] Speaker 03: Let's hear from Council for Appellees. [00:18:19] Speaker 06: Good morning, Your Honors, and may it please the Court. [00:18:21] Speaker 06: My name is Ben Richmond, and I represent Federal Appellees. [00:18:25] Speaker 06: Your Honor, what this case concerns is the denial of two different permit applications, a captive bred wildlife registration and an export permit, both of which pertain to plaintiff's population of Grand Cayman blue iguanas, a species which has been listed under the Endangered Species Act since 1983 and protected under the convention since 1977. [00:18:47] Speaker 06: What is really here at the heart of the case is plaintiff's applications for these two separate permits. [00:18:53] Speaker 06: and whether the information submitted by plaintiff meet all of the standards required for the service to grant those permits. [00:19:02] Speaker 06: So what I'd like to do, Your Honors, is briefly frame up for our benefit the different requirements for each of these different permits. [00:19:11] Speaker 06: I'll start with the export permit. [00:19:14] Speaker 06: The export permit was plaintiff's application to export four of its Grand Cayman blue iguanas to the Alberg Zoo in Alberg, Denmark. [00:19:24] Speaker 06: For these export permits, there are two groups of findings which need to be made. [00:19:28] Speaker 06: First, a finding under the Endangered Species Act that the export would enhance the propagation or survival of the species. [00:19:38] Speaker 06: Then, and the other group of findings for the export permit are two findings under the convention. [00:19:43] Speaker 06: That is a legal acquisition finding that the species to be exported and its parental stock have been legally acquired and a non-detriment finding that the animals to be exported would not be detrimental to the species as a whole and in particular the species in the wild. [00:20:02] Speaker 06: The other permit at issue here is the captive wildlife registration. [00:20:06] Speaker 06: And what a captive bred wildlife registration is, is it allows otherwise prohibited activities under the Endangered Species Act for the purpose of some sort of beneficial breeding program, a captive breeding program designed to promote the endangered species in question. [00:20:24] Speaker 06: So here there are various findings that need to be made for that captive bred wildlife permit. [00:20:28] Speaker 06: And those findings cannot be made unless the parental stock of the animals covered by the permit. [00:20:35] Speaker 06: have been legally acquired. [00:20:37] Speaker 06: So those are all the various requirements. [00:20:39] Speaker 06: There are three that are relevant here for the export permit, and there's one really that's relevant here, the captive bred wildlife registration. [00:20:47] Speaker 06: Now, the burden was on plaintiff, as Your Honours discussed previously, burden was firmly on plaintiff to provide enough information to allow the service to make these various findings and grant both of the applications. [00:21:01] Speaker 06: But after three rounds of administrative review, that just wasn't possible here. [00:21:06] Speaker 06: And the service was not able to make these findings that would allow it to grant these permits. [00:21:12] Speaker 06: I'll briefly talk about the findings that were made on each of these permits here. [00:21:16] Speaker 06: So beginning with the export permit, I discussed there were three findings which were crucial. [00:21:21] Speaker 06: The service could not make two of those findings. [00:21:25] Speaker 06: It was not able to make an enhancement finding. [00:21:28] Speaker 06: because it determined that plaintiffs' final representation, that it sought to export four iguanas born from the same clutch to Alberg, Denmark, where it would have no other iguanas for those that want us to read with, would not be consistent with the genetic diversity. [00:21:45] Speaker 06: It also made a finding on legal acquisition. [00:21:48] Speaker 06: As Your Honors discussed previously, there were three shifting explanations of the blue iguanas that plaintiffs sought to export. [00:21:55] Speaker 06: First, it sought to export iguanas from the Life Fellowship in the San Diego Zoo. [00:22:01] Speaker 06: After that application was denied, plaintiffs said it wanted to export two pairs of iguanas, one originating from Ty Park in Florida, the other two originating with Ramon Noagel. [00:22:12] Speaker 06: Then after that application was denied, there was yet another representation that plaintiffs sought to export four iguanas, all from Ramon Noagel. [00:22:21] Speaker 06: So those shifting explanations here were not credible and cannot be corroborated by a hearsay affidavit, which again, the service was not able to credit because there were serious issues with the credibility of that information. [00:22:34] Speaker 03: Well, let me ask you. [00:22:36] Speaker 03: Yes, Judge Silverman. [00:22:40] Speaker 02: Thank you. [00:22:40] Speaker 02: On the Blair affidavit, part of it was not hearsay, wasn't it? [00:22:45] Speaker 02: What Blair himself observed or did. [00:22:50] Speaker 06: Yes, Your Honor. [00:22:51] Speaker 06: All Blair attested to as the affiant was that Ramon Noagel had told him that Ramon Noagel had acquired these iguanas in 1971. [00:23:01] Speaker 02: That's not all Blair did. [00:23:05] Speaker 02: His affidavit also describes what he did. [00:23:09] Speaker 02: And that's not hearsay. [00:23:11] Speaker 06: Correct, Your Honor. [00:23:12] Speaker 06: What Blair did himself was not hearsay, but the information about legal acquisition, which is the relevant part of the affidavit that would have been relevant to that legal acquisition requirement, was a hearsay statement. [00:23:25] Speaker 02: What about your own investigation, which indicated possibly that Blair was correct? [00:23:36] Speaker 06: So your honor, I just want to clarify that the the investigation of the service data went above and beyond its requirement to review evidence here. [00:23:46] Speaker 06: It could have just stayed right. [00:23:48] Speaker 03: It did it. [00:23:49] Speaker 03: So, yes, your honor, Judge Silverman is saying it had that information before it. [00:23:55] Speaker 06: Yes, your honor. [00:23:56] Speaker 06: So what the service did, which is reflected in its various emails, is it tried to determine whether the Blair affidavit did have any credibility, and that account had any credibility. [00:24:07] Speaker 06: And to do so, it reviewed Ramon Noegel's published iguana research, published in the 1980s, to try to verify if these iguanas, which had supposedly been imported into the United States in the early 1970s, had been present in the United States before the iguanas were protected under law. [00:24:25] Speaker 02: And your investigator, excuse me, your investigator determined possibly Blair was right. [00:24:33] Speaker 06: Your honor, what the service determined was that there was not enough evidence in that research to show that the iguanas had been in the United States before protection under the convention in 1977. [00:24:45] Speaker 06: The service, and they not only reviewed the iguana research published by Ramon Nuevo, they also talked to Fred Burton, [00:24:55] Speaker 06: and asked Fred Burton to see who is an iguana researcher with the Grand Cayman Islands government, whether he could cooperate in import of iguanas. [00:25:04] Speaker 06: And again, there wasn't credible information from Mr. Burton. [00:25:08] Speaker 02: Who was the one of your investigators that said it was possible that Blair was right? [00:25:17] Speaker 06: Your honor, I believe that was Fred Burton's recollection in his email. [00:25:21] Speaker 06: He begins his email by saying, I understand that this may have happened and it is possibly legal, but there were [00:25:29] Speaker 06: there were serious issues with his account. [00:25:31] Speaker 06: So for example, he mentioned that an individual named Roger Fair had orchestrated the export in what he had heard about this export. [00:25:43] Speaker 06: And the issue was that the service had information before it that Roger Fair had not arrived on Grand Cayman until the 1980s. [00:25:52] Speaker 06: And in addition, that account attributing the export to Roger Fair, conflicted with Ramon Nauegel's recollection, which was that Ramon Nauegel himself had captured these iguanas in the wild and shipped them back to the United States in his check baggage. [00:26:09] Speaker 06: So these many and different varying accounts were just not enough to show a legal acquisition finding here. [00:26:17] Speaker 03: So basically the agency wants a bill of sale. [00:26:21] Speaker 03: That's been notarized. [00:26:24] Speaker 06: No, your honor. [00:26:25] Speaker 06: Any clear information that the iguanas had existed in the United States? [00:26:31] Speaker 03: Well, the argument is that the man who Blair referred to is dead. [00:26:37] Speaker 05: Yes, your honor. [00:26:38] Speaker 03: All right. [00:26:38] Speaker 03: So there's no way to get a direct statement from him. [00:26:43] Speaker 03: So that's why I say the agency is saying [00:26:46] Speaker 03: in those circumstances, we're not going to conclude anything less than a bill of sale is. [00:26:55] Speaker 06: There's no announcement that a bill of sales required, Your Honor. [00:26:59] Speaker 03: No, but I'm just thinking about the reality of what happened here. [00:27:03] Speaker 05: Yes, Your Honor. [00:27:04] Speaker 03: You made your own investigation. [00:27:06] Speaker 03: You had some indication that this probably happened the way people were saying. [00:27:10] Speaker 03: There were no eyewitnesses. [00:27:12] Speaker 03: There was no written bill of sale. [00:27:15] Speaker 03: and you're just not going where somebody's on the appendix one, not somebody, but some species is on appendix one, there's a very high burden, says the agency, even though the requesting party here has an admirable record and the zoo in Denmark has an admirable record, but it just doesn't have any blue iguanas. [00:27:41] Speaker 06: Your honor, a bill of sale wasn't required. [00:27:43] Speaker 06: The service looked at the research published by Ramon Nawegal in part to try to corroborate that some of these iguanas had just been present in the United States in the early 1970s. [00:27:54] Speaker 06: Any record from a zoo or research institution that these iguanas were present in the United States would have sufficed. [00:28:02] Speaker 06: You know, zoos, research institutions, they keep track of the animals in their collection. [00:28:06] Speaker 03: No, but Council, what appears to have happened here is [00:28:13] Speaker 03: some of these exotic species were being brought in surreptitiously. [00:28:18] Speaker 03: So you don't have a legal trail. [00:28:22] Speaker 06: Yes, Your Honor. [00:28:23] Speaker 06: It appears that that may have been an issue. [00:28:25] Speaker 03: And then the agency decided it was going to issue this rule establishing this program. [00:28:32] Speaker 03: So what would otherwise be legal activity could be legal, provided all these criteria were met. [00:28:39] Speaker 03: And if they weren't met in the agency's view, [00:28:43] Speaker 03: you wouldn't get your permit. [00:28:46] Speaker 06: Correct. [00:28:48] Speaker 06: If an export here is to be done, then that export has to have animals that have been legally acquired or their parental stock and their parental stock have been legally acquired. [00:29:01] Speaker 06: That is consistent with the conservation mandates of the service. [00:29:06] Speaker 02: You know what occurs to me, council, as time goes on, [00:29:11] Speaker 02: the getting evidence of legal acquisition prior to the effective date of the statute or in the regulation. [00:29:23] Speaker 02: You necessarily are going to rely on hearsay because people are gonna be dead. [00:29:33] Speaker 02: Are you discriminating against old people? [00:29:38] Speaker 06: No, your honor, certainly not. [00:29:40] Speaker 06: So I just want to clarify, you know, the burden here is on plaintiff to present sufficient evidence. [00:29:45] Speaker 06: And perhaps in some cases, hearsay could suffice. [00:29:49] Speaker 06: But here, there's just no indicia of reliability to corroborate the hearsay statement. [00:29:54] Speaker 02: The problem is a fellow who made the comment noble, is it? [00:29:58] Speaker 02: He's dead. [00:29:59] Speaker 02: No, I'm sorry. [00:30:01] Speaker 02: I'm mispronouncing. [00:30:02] Speaker 02: He's dead. [00:30:04] Speaker 02: Isn't that correct? [00:30:05] Speaker 06: Yes, your honor. [00:30:06] Speaker 06: Yes. [00:30:06] Speaker 06: And, and the service, you know, exceeded its burden here to review evidence related to acquisition and and tried to find additional corroboration of that hearsay statement understanding that that could possibly be the best evidence before them. [00:30:21] Speaker 06: But, you know, when it went looking for that information, Ramona Wegel's published Iguana research with its correspondence with Fred Burton, it could not corroborate the hearsay. [00:30:31] Speaker 06: There was no indicia of reliability which would allow the service to accept that hearsay for the legal acquisition finding. [00:30:39] Speaker 07: Why does legal acquisition of the parent stock even matter? [00:30:45] Speaker 07: The treaty requires that the specimen [00:30:51] Speaker 07: be lawfully acquired and specimen is a defined term that means the animal itself, not the animal and go 10 generations back to the beginning of time, four decades ago. [00:31:10] Speaker 06: part of one of the findings under the convention. [00:31:13] Speaker 06: And in order to put into effect those requirements at the convention, there are rules and regulations. [00:31:20] Speaker 06: I don't have the specific rule here, but those rules. [00:31:23] Speaker 07: Your regulation under the treaty says specimen or parental stock. [00:31:30] Speaker 07: The treaty just says specimen. [00:31:34] Speaker 07: Yes, your honor. [00:31:35] Speaker 07: I mean, it may be the short answer is this wasn't this wasn't challenged, but you may be asking us to uphold an order based on a law that doesn't really exist or a requirement that doesn't really exist. [00:31:53] Speaker 02: Depending on whether the regulation is a proper interpretation of the statute. [00:31:58] Speaker 06: Yes, your honor. [00:31:59] Speaker 06: And so because these issues weren't raised below, the service didn't have an opportunity to brief the specific rules promulgated here to carry out the convention. [00:32:10] Speaker 06: But if your honors would potentially like additional information or briefing on that matter, that issue is raised. [00:32:16] Speaker 06: And somehow, even though it wasn't raised below, we'd be happy to do that. [00:32:21] Speaker 02: OK. [00:32:22] Speaker 02: I'm certainly not requesting a digital briefing. [00:32:25] Speaker 06: Thank you, your honor. [00:32:27] Speaker 03: Talk a little bit, if you will, about the denial of the re-registration request. [00:32:35] Speaker 06: Yes, your honor. [00:32:37] Speaker 06: Thank you for asking that. [00:32:38] Speaker 06: So the captive bred wildlife registration, the issue there was, again, the legal acquisition of parental stock. [00:32:45] Speaker 06: And that registration, it was because [00:32:50] Speaker 06: Essentially, what was being considered in the captive bred wildlife registration was the entire population of 22 blue iguanas that plaintiff had in its possession. [00:32:59] Speaker 06: And the service prompted plaintiff to submit that information on the legal acquisition of its parental stock. [00:33:06] Speaker 06: And through three rounds of administrative review, there was no information submitted about the entire population of parental stock and whether that had been legally acquired. [00:33:19] Speaker 03: So let me just be clear. [00:33:26] Speaker 03: This organization, so far as the record indicates, has a good record. [00:33:32] Speaker 03: It's not as though it's been cited by the agency over time for violating regulations or anything. [00:33:40] Speaker 06: Not to my knowledge, Your Honor. [00:33:43] Speaker 03: Well, not in the record before us. [00:33:45] Speaker 06: Not in the record before us, I'm sorry. [00:33:46] Speaker 03: And I don't think we want to apply. [00:33:48] Speaker 03: that there may be something out there because the agency hadn't presented that. [00:33:54] Speaker 03: No point in smearing somebody's reputation. [00:33:56] Speaker 03: Okay. [00:33:57] Speaker 03: So they've been receiving these registrations for years and have done a good job with this particular species, growing it. [00:34:12] Speaker 03: But [00:34:14] Speaker 03: Following up on Judge Silverman's point, time passes, people die, they can't get the original owner, so they come up with the best information they have. [00:34:22] Speaker 03: And it's true, the agency says, well, we can't definitively determine legal acquisition of the parental stock. [00:34:36] Speaker 03: Is there any different standard for export versus registration [00:34:45] Speaker 06: Your honor, the regulatory scheme for exports versus captive bred wildlife programs are different. [00:34:52] Speaker 06: And I tried to describe that a little bit earlier. [00:34:55] Speaker 06: The finding that's key under the captive bred wildlife registration is provided under 1721 G, which is a rule. [00:35:04] Speaker 06: There are a variety of different findings and factors which the service would ordinarily have to make to grant that captive bred wildlife registration. [00:35:12] Speaker 06: But those findings can't be made unless the parental stock of the species covered by the captive bred wildlife permit have been legally acquired. [00:35:21] Speaker 03: So the question is, what is the burden for re-registration? [00:35:26] Speaker 03: What I'm talking about is somebody's been operating under your registrations for years. [00:35:33] Speaker 05: Yes. [00:35:33] Speaker 03: And there's no evidence that they have ever come into a review or investigation [00:35:41] Speaker 03: by the agency. [00:35:43] Speaker 03: Now they want to export some iguanas. [00:35:47] Speaker 03: And they've got a problem, all right? [00:35:50] Speaker 03: In terms of genetics, apparently, as counsel tells us, there was some fight going on and some misrepresentations were made, but petitioners owned up to them and hoped to go forward. [00:36:05] Speaker 03: So [00:36:07] Speaker 03: I'm just a little concerned that under those circumstances, I mean, what is the status now? [00:36:12] Speaker 03: Is everything they're doing illegal? [00:36:14] Speaker 03: Can they be fined? [00:36:15] Speaker 03: Can they be shut down? [00:36:18] Speaker 06: Your Honor, the only real result of the permit being revoked is not having that captive bred wildlife registration for their iguanas. [00:36:26] Speaker 06: This is not an enforcement action. [00:36:29] Speaker 03: I understand that you haven't brought that yet. [00:36:32] Speaker 03: What I'm getting at is they're trying to run [00:36:36] Speaker 03: a lawful operation. [00:36:38] Speaker 05: Yes, Your Honor. [00:36:38] Speaker 03: They've had the blessing of the agency for years. [00:36:43] Speaker 03: Yes, Your Honor. [00:36:43] Speaker 03: Sure, they don't have bill sales apparently for every animal in their custody now, these 24 blue iguanas. [00:36:57] Speaker 06: Yes, Your Honor. [00:36:58] Speaker 06: So issues arose about the parental stock of the iguanas in question here, and they arose because of the export application. [00:37:05] Speaker 06: And now- Excuse me, counsel. [00:37:09] Speaker 02: To make it clear with respect to Judge Rodgers question, your actions so far implicates only the blue iguanas in the stock of the company or the zoo. [00:37:24] Speaker 02: Is that correct? [00:37:27] Speaker 06: Yes, Your Honor. [00:37:28] Speaker 06: These actions are issued here only as to Phoenix Herpetological Society's collection of iguanas. [00:37:34] Speaker 03: But their registration has expired. [00:37:37] Speaker 03: Yes, Your Honor. [00:37:38] Speaker 03: It isn't limited to the blue iguanas. [00:37:42] Speaker 02: I'm sorry. [00:37:45] Speaker 02: I misunderstood. [00:37:46] Speaker 02: I thought the registration affected only the blue iguanas, not the other animals. [00:37:51] Speaker 02: Is that right? [00:37:52] Speaker 06: Correct, Your Honor. [00:37:53] Speaker 06: There were a whole host of different animals listed on the captive register. [00:37:57] Speaker 03: So as to the 24 iguanas, they have no authority to [00:38:04] Speaker 03: Maintain them? [00:38:06] Speaker 06: Correct, Your Honor. [00:38:07] Speaker 06: They're not, I want to be careful about how I answer this question because there are different regulatory schemes at issue here, but essentially the plaintiff is not licensed to, excuse me, conduct a captive bred wildlife program as with respect to these Grand Canyon blue iguanas. [00:38:26] Speaker 02: What happens to these blue iguanas? [00:38:29] Speaker 03: I don't know what happens to them. [00:38:34] Speaker 06: So, Your Honor, the final administrative denial here that was issued by the service prompted plaintiff to work with the service and potentially submit additional information that could corroborate legal acquisition. [00:38:48] Speaker 06: But even after that final administrative denial, let's say J615. [00:38:52] Speaker 02: Counsel, we're curious, what happens to the blue agronas? [00:38:57] Speaker 06: Your Honor, I believe it's in the discretion of the service, whether it enforced inaction. [00:39:02] Speaker 06: To do what? [00:39:04] Speaker 06: potentially enforcement action could be brought. [00:39:06] Speaker 06: I don't want to speculate as to what the service would do. [00:39:10] Speaker 06: Or the service could try to continue to work with plaintiff to try to get this captive red wildlife registration renewed as it prompted plaintiff to do at J615. [00:39:22] Speaker 02: But counsel, if you still deny the registration, what happens to the blue iguanas? [00:39:28] Speaker 06: The blue iguanas are still [00:39:31] Speaker 06: They're no longer, there's no longer an exemption under section nine of the Endangered Species Act that would allow plaintiff to collect capture. [00:39:40] Speaker 02: You're not answering the question. [00:39:43] Speaker 02: Why can't we be worried about the blue iguanas? [00:39:48] Speaker 06: I'm sorry, I'm not sure I understand your honor. [00:39:50] Speaker 02: We wanna know what happens to the blue iguanas if the registration to hold the blue iguanas is denied. [00:39:58] Speaker 06: Yes, your honor. [00:39:59] Speaker 06: As far as I understand now, nothing currently will happen. [00:40:04] Speaker 06: Plaintiffs will still have the blue iguanas. [00:40:05] Speaker 06: They won't be covered by this permit. [00:40:07] Speaker 07: Well, let's try it this way. [00:40:10] Speaker 07: Yeah. [00:40:13] Speaker 07: Assuming the CBW registration is not reinstated, is it presently lawful for them to possess [00:40:27] Speaker 06: iguanas no your honor wow oh therefore what happens to the blue iguanas you don't know uh i i don't know it's again it's at the discretion of the agency uh how it would follow up here and why is that is that because [00:40:52] Speaker 07: Is that because you understand the verb take to include possession? [00:41:01] Speaker 06: Your Honor, section nine also prohibits collect. [00:41:05] Speaker 07: Clearly without the permit, they can't export, they can't sell, I get that. [00:41:11] Speaker 06: They cannot collect either, that's part of the session. [00:41:15] Speaker 07: Collect can mean acquire. [00:41:19] Speaker 07: You think it means possess. [00:41:22] Speaker 06: Perhaps, Your Honor. [00:41:24] Speaker 06: And again, we didn't have the opportunity to brief this below. [00:41:26] Speaker 06: I guess there is a question as you're raising about whether- This is the most nuclear of all remedies. [00:41:33] Speaker 07: They just shut down. [00:41:35] Speaker 07: They can't breathe. [00:41:38] Speaker 07: They can't possess. [00:41:42] Speaker 07: They're out of business. [00:41:47] Speaker 02: Well, they're not out of business because I gather they collect [00:41:51] Speaker 02: or have a lot of different animals. [00:41:57] Speaker 02: But as the blue iguanas, they're out of business. [00:42:00] Speaker 02: And that mystifies me as to what happens to the blue iguanas. [00:42:06] Speaker 02: You're not going to walk out there and kill them. [00:42:09] Speaker 06: No, Your Honor. [00:42:10] Speaker 06: And again, in terms of a remedy or a way, a path forward here, [00:42:15] Speaker 06: The most beneficial thing to happen would be for plaintiff to continue to work with the service and attempt to try to corroborate legal acquisition and obtain that captive bred wildlife permit. [00:42:26] Speaker 03: I understand that's the problem though. [00:42:29] Speaker 03: The agency is saying I want a bill of sale. [00:42:32] Speaker 03: And I know you say here say if it's corroborated but they tried to corroborate it in several ways and that was not satisfactory to the agency. [00:42:40] Speaker 03: And that's why I raised the question whether or not the standard under the export permit is different than the standard under the possession in the circumstances where over the years the agency has issued these registrations and this particular organization has been very successful. [00:42:58] Speaker 03: in propagating these blue iguanas. [00:43:02] Speaker 03: And there's no evidence of any concern by the agency until now. [00:43:10] Speaker 03: And yet the agency says, well, we're probably wrong in issuing all these previous. [00:43:16] Speaker 06: Yes, Your Honor. [00:43:16] Speaker 06: The agency conceded that at JA 373, that it might have to re-evaluate prior approvals. [00:43:23] Speaker 06: Conceded what? [00:43:26] Speaker 06: that it may have to reevaluate prior approvals in light of this legal acquisition. [00:43:30] Speaker 03: They didn't concede anything. [00:43:32] Speaker 03: They just put him, who is it? [00:43:34] Speaker 03: It's the Phoenix Perpetuological Society in a precarious position. [00:43:47] Speaker 03: That's all I'm getting at. [00:43:49] Speaker 06: Yes, your honor. [00:43:50] Speaker 06: The burden here was on plaintiff to provide sufficient evidence. [00:43:53] Speaker 06: You know, after three rounds of administrative review and working with the agency, plaintiff wasn't able to provide that information. [00:43:59] Speaker 03: When was the first registration issued? [00:44:01] Speaker 03: Back in the early 80s? [00:44:05] Speaker 06: No, your honor. [00:44:07] Speaker 06: I actually don't have in the record the approximately registration beyond the one that was set to expire in 2017. [00:44:14] Speaker 06: So I'm not exactly sure at this time how many previous dozens of years is what I'm getting at. [00:44:21] Speaker 03: Well, the agency comes along with a new concern. [00:44:25] Speaker 03: Okay. [00:44:29] Speaker 03: Blue iguanas could go to another zoo that has a registration. [00:44:33] Speaker 03: But I don't understand how the other zoo can accept them when there's no proof of lawful entry of the parent stock. [00:44:43] Speaker 03: And under your interpretation, the interpretation, that's what Judge Silverman is focusing on. [00:44:49] Speaker 03: Do you have to kill these iguanas? [00:44:50] Speaker 03: Because nobody has authority to maintain them because you can't [00:44:57] Speaker 03: come up with this bill of sale or this passport? [00:45:03] Speaker 03: Okay, well. [00:45:05] Speaker 02: I'll be interested to hear council for petitioners response to our concern about the blue iguanas. [00:45:14] Speaker 03: All right, why don't we turn to council for petitioner? [00:45:18] Speaker 03: We'll give you another couple of minutes. [00:45:20] Speaker 01: Thank you, your honor. [00:45:22] Speaker 01: Your honor had asked whether or not there was a difference as to [00:45:27] Speaker 01: the legal acquisition as it related to the CBW registration and as it related to the export. [00:45:34] Speaker 01: My understanding from a review of the decisions that were rendered by the agency was that was the linchpin upon which really both of these applications were denied. [00:45:47] Speaker 02: Council, would you help us? [00:45:52] Speaker 02: We're all puzzled at what the significance of the denial of registration. [00:45:57] Speaker 02: We understand the denial of export, but what is the significance of the denial of registration in real terms? [00:46:03] Speaker 02: What happens? [00:46:05] Speaker 01: I think your honors were hinting around it. [00:46:10] Speaker 02: I don't think we were hitting. [00:46:11] Speaker 02: No, no, we're absolutely puzzled. [00:46:13] Speaker 02: We don't know. [00:46:14] Speaker 01: I'm being, I was being somewhat polite to the extent that I believe based upon what my colleague said, the animals, they're not legally acquired. [00:46:24] Speaker 01: So if they're not legally legally acquired by the agency's determination and that lack of legal acquisition prevents my client from exporting them. [00:46:37] Speaker 01: with the same, in the same vein and along the exact same parallel track, they cannot be transferred to another zoo as was suggested because that transfer would basically negate the reason for denying the export reason based upon legal application. [00:46:56] Speaker 02: That's what Judge Rogers pointed out. [00:46:59] Speaker 02: So what happens to the blue iguana? [00:47:02] Speaker 02: Do they still stay at your clients location even without registration? [00:47:10] Speaker 01: Based upon what my colleague said, I believe the inevitable answer is, which he refused to provide, is they get destroyed. [00:47:19] Speaker 02: That can't be true. [00:47:21] Speaker 01: Well, he didn't, if I can't, he said I'm not legally allowed to withhold [00:47:27] Speaker 03: I mean, this is what's so- Yeah, I thought he was saying, excuse me, Judge Kansas, he was saying, well, the agency has discretion as to whether it brings an enforcement action, but yes, Judge Kansas. [00:47:42] Speaker 07: I mean, if they get destroyed, then that's harm, which is a separate ESA violation. [00:47:55] Speaker 07: If they don't get destroyed, that's continued possession, which the government thinks counts as collection, which is a violation. [00:48:08] Speaker 07: So what do you do? [00:48:09] Speaker 01: Your honor, I look at this and I say, here's an agency. [00:48:14] Speaker 01: And this is what the whole basis of our position is. [00:48:18] Speaker 01: It's arbitrary, it's capricious, and it's absolutely unreasonable for many of the reasons that are the concerns of all three of your honors. [00:48:28] Speaker 02: Yes, but you're not answering the question. [00:48:30] Speaker 02: Nobody's answering the question, what happens to the blue iguanas? [00:48:33] Speaker 03: No, he answered it. [00:48:34] Speaker 02: I believe they get destroyed. [00:48:38] Speaker 02: Is that that can't be correct. [00:48:40] Speaker 02: I don't know because that's certainly can I go back to counsel for the government. [00:48:45] Speaker 02: Are you saying it's likely they'll be destroyed. [00:48:49] Speaker 02: I'm asking counsel for the government. [00:48:51] Speaker 06: No, no, your honor. [00:48:53] Speaker 02: Can you assure us they won't be destroyed. [00:48:57] Speaker 06: I think it would be highly unlikely that they would be destroyed. [00:49:00] Speaker 06: It'd be hard for me to believe that. [00:49:02] Speaker 06: Unfortunately, what I'm struggling with here, Your Honor, is we don't know what the agency will do in its discretion here. [00:49:09] Speaker 03: That's my point. [00:49:10] Speaker 03: That's the only answer you've had. [00:49:12] Speaker 06: Exactly. [00:49:13] Speaker 03: Exactly, Judge Rodgers. [00:49:14] Speaker 03: The society has hanging sort of a sword of Damocles over its head. [00:49:20] Speaker 03: So one day the agency shows up on its doorstep with an enforcement action. [00:49:26] Speaker 03: Maybe a modification to the regulations is required. [00:49:33] Speaker 06: I'm sorry, may I speak counsel and Sorry, may I speak your honor. [00:49:40] Speaker 06: Perhaps. [00:49:41] Speaker 06: I just wanted to emphasize, you know, there are three rounds of administrative review here. [00:49:45] Speaker 06: And the service was really doing all it could here on giving every opportunity to try to collect the information available to meet these requirements. [00:49:53] Speaker 06: Perhaps the regulations, you know, perhaps the regulation could be challenged in the future. [00:49:58] Speaker 06: Perhaps some of these issues of the regulations might be taken up, but that just wasn't briefed here below or challenged below. [00:50:05] Speaker 07: Does the service have some mechanism? [00:50:09] Speaker 07: And this kind of problem must come up, which is you find people who are unlawfully possessing endangered species. [00:50:22] Speaker 07: Is there some mechanism by which the service, if it chose, could come in and take possession and care for the animals or send them to Denmark or whatever? [00:50:36] Speaker 06: So your honor, I'm sorry, but I wasn't able to familiarize myself with the specific enforcement provisions of the service would have available to it. [00:50:45] Speaker 02: Well, anyway, are you taking are you saying that the denial of the registration itself has no Enforcement aspect at all. [00:50:56] Speaker 02: The denial of the registration has no meaning. [00:51:00] Speaker 06: Again, I'm sorry, Your Honor, but I don't have that information available to me right now. [00:51:05] Speaker 06: If the court, again, wanted supplemental briefing on this, the government would be happy to submit it. [00:51:12] Speaker 03: I guess the question is, clearly before us is a challenge that the denial of the registration renewal was arbitrary and capricious. [00:51:30] Speaker 03: And that's why I raised the question as to whether the agency views these requirements differently for export and registration. [00:51:42] Speaker 03: And I thought that might be hinted at in your brief because you repeatedly criticized petitioners for responding to the agency's requests with one submission as opposed to responding separately as to the export. [00:52:01] Speaker 03: separately as to the registration, but I gather that is not your position. [00:52:06] Speaker 03: And so the question is, was it arbitrary and capricious for the agency to reach the conclusion it did here when, so far as we're being told today, [00:52:27] Speaker 03: It is possible that absent a registration, the society has no authority to continue to maintain these iguanas that are on appendix one. [00:52:44] Speaker 03: And it has no way to prove what the agency is requiring. [00:52:55] Speaker 03: And so the agency is essentially, what do we say, cutting off its own, I'll get the analogy wrong, but the point is it's supposed to be preserving and promoting and protecting, and that's not the result here. [00:53:15] Speaker 03: Because if you have wild species for which the current lawful or previously lawful species [00:53:23] Speaker 03: possessor cannot show a bill of sale, then despite the preservation and enhancement desires, the species has to be destroyed. [00:53:36] Speaker 06: Your honor, I just want to clarify a few points there. [00:53:42] Speaker 06: So in terms of this action being consistent with the Policy of Endangered Species Act, the service has certain conservation mandates. [00:53:49] Speaker 06: And part of that is making sure that there's a well-administrated [00:53:52] Speaker 06: well-administered captive-bred wildlife program where individuals and research institutions aren't breeding potentially iguanas with parental stock that have been illegally required. [00:54:04] Speaker 03: That's right. [00:54:05] Speaker 03: So the result of your argument is they have to be destroyed because nobody has authority to have them, because nobody can prove [00:54:15] Speaker 05: No, Your Honor, that's not the position of the service. [00:54:17] Speaker 05: That's not the position of the service. [00:54:18] Speaker 03: The service is investigated, and it couldn't find anything to satisfy it that these iguanas were brought in lawfully. [00:54:29] Speaker 06: The position of the service is only that a captive bred wildlife registration can't be issued because plaintiff failed to meet the criteria outlined under the permit. [00:54:37] Speaker 03: I think you said that four times and the point is, what is the conclusion? [00:54:42] Speaker 03: And that's what Judge Silberman has been zeroing in on. [00:54:46] Speaker 02: What's the implication of the denial of registration? [00:54:50] Speaker 02: That has to be before us. [00:54:51] Speaker 02: I think the presiding judge should ask the government to come in [00:54:58] Speaker 02: not necessarily with a new brief, but just a statement as to what the significance of denial of registration is, perhaps in 10 days. [00:55:06] Speaker 02: What happens as a result of that? [00:55:11] Speaker 02: Could we do that? [00:55:12] Speaker 02: Could we ask counsel to at least provide us with a statement as to what the legal implications of denial of registration are? [00:55:27] Speaker 03: Judge Katz's? [00:55:28] Speaker 07: With me. [00:55:30] Speaker 03: Yeah. [00:55:31] Speaker 03: All right. [00:55:33] Speaker 03: So we would like a filing by appellees stating what is the effect of the denial of registration. [00:55:53] Speaker 05: Yes, Your Honor. [00:55:54] Speaker 03: And specifically, [00:55:57] Speaker 03: what happens to the 24 blue iguanas that the society currently possesses and has possessed for decades under registrations issued by the agency. [00:56:17] Speaker 03: And [00:56:25] Speaker 03: What do we want to say, a maximum of five pages? [00:56:31] Speaker 03: Today is the 12th. [00:56:35] Speaker 03: Submitted to the court within a week. [00:56:44] Speaker 03: Is that possible, be the 19th? [00:56:46] Speaker 05: Yes, Your Honor, absolutely. [00:56:50] Speaker 03: The only reason I hesitate, Judge Silverman, is I don't know what the implication of that is for the petitioners. [00:56:59] Speaker 03: And maybe we'll see. [00:57:00] Speaker 02: Perhaps they should have the same five days to give their understanding of what their denial of registration means. [00:57:12] Speaker 03: So simultaneous filings? [00:57:15] Speaker 02: Yes, I think so. [00:57:16] Speaker 02: Otherwise, we'd drag it on too long. [00:57:18] Speaker 03: No, okay. [00:57:19] Speaker 03: So you're suggesting five days. [00:57:21] Speaker 03: I was giving them a week. [00:57:23] Speaker 02: Well, whatever you say. [00:57:25] Speaker 03: Council for appellants. [00:57:33] Speaker 01: I believe that, I mean, I will defer to the court as to the timeframe that the court wants to impose. [00:57:43] Speaker 03: All right, but you would have no problem submitting a statement. [00:57:46] Speaker 03: Say today is the 12th. [00:57:49] Speaker 01: by next Friday? [00:57:49] Speaker 03: A week from Friday. [00:57:53] Speaker 03: Yeah, that's sort of a week. [00:57:55] Speaker 01: That'll be fine. [00:57:57] Speaker 03: All right. [00:57:58] Speaker 03: And no more than five pages. [00:58:01] Speaker 01: That would be fine. [00:58:02] Speaker 01: May I make one additional comment that was raised very early in the argument as part of my rebuttal, if I may? [00:58:11] Speaker 01: Yes. [00:58:13] Speaker 01: I think Judge Silverman pointed out that the Blair affidavit [00:58:18] Speaker 01: contained certain information that was in fact not hearsay. [00:58:24] Speaker 01: And upon rereading some of my own writings, [00:58:28] Speaker 01: I may not have written it as clearly as I probably should have. [00:58:33] Speaker 01: And I noticed that when I was preparing for argument yesterday and was going through some of the materials that were in fact part of the record. [00:58:42] Speaker 01: So specifically looking at JA000175, which is in fact the March 2nd, 2006 affidavit from David Blair to Helen Wilson. [00:58:55] Speaker 01: The part that I believe the judge was referring to is where Mr. Blair says, I obtained in 1971 from Roman Nagel in Florida. [00:59:10] Speaker 01: That is not hearsay. [00:59:12] Speaker 01: That is coming from the individual and the maker of the statement himself. [00:59:16] Speaker 01: It's not being used for certainly any controversial. [00:59:19] Speaker 02: Council, we already recognize that. [00:59:24] Speaker 03: Anything for- All right, so then by March 19th, council will submit a statement on the effect of denial of the registration to the society and regarding [00:59:51] Speaker 03: The brothers listed in appendix one currently in its possession. [01:00:00] Speaker 01: Thank you. [01:00:01] Speaker 01: Thank you. [01:00:02] Speaker 03: Thank you. [01:00:03] Speaker 03: And we will await your filings. [01:00:05] Speaker 03: Thank you, counsel. [01:00:07] Speaker 01: Thank you.