[00:00:01] Speaker 01:
Case number 22-5238, et al.

[00:00:04] Speaker 01:
Maine Lost Commands Association, et al.

[00:00:07] Speaker 01:
State of Maine Department of Marine Resources, et al.

[00:00:10] Speaker 01:
Versus National Marine Fisheries Service, et al.

[00:00:14] Speaker 01:
Mr. Clement for the et al.

[00:00:15] Speaker 01:
Maine Lost Commands Association.

[00:00:17] Speaker 01:
Ms.

[00:00:17] Speaker 01:
Engels for the Appalachian National Marine Fisheries Service, et al.

[00:00:21] Speaker 01:
Ms.

[00:00:22] Speaker 01:
Monselle for the Intergenerational Conservation Works.

[00:00:27] Speaker 06:
Mr. Cmike, good morning.

[00:00:30] Speaker 08:
Good morning, Your Honors, and may it please the Court, Paul Clement and the Appellants.

[00:00:36] Speaker 08:
Properly construed, the Endangered Species Act does not require the federal government to shutter an iconic industry central to the cultural identity of Maine to avoid speculative harms to an endangered species.

[00:00:49] Speaker 08:
The federal government's approach of protecting species against worst-case scenarios without considering the countervailing costs for other important objections

[00:00:59] Speaker 08:
Hearkens back to the pre TBA Hill approach to the Endangered Species Act that Congress amended the ESA to address.

[00:01:08] Speaker 08:
And as amended, the ESA requires the federal government to consider likely scenarios and make decisions based on the best available scientific and commercial data, not based on speculation, presumptions, and worst case scenarios.

[00:01:23] Speaker 06:
Could the agency, the reviewing agency adopt a tie goes to the species rule?

[00:01:30] Speaker 08:
I don't think so, your honor.

[00:01:31] Speaker 08:
And the reason I don't think they could adopt that rule properly is because if you adopt that kind of substantive presumption that the tie goes to the species, then I'm afraid the agency is going to find ties everywhere.

[00:01:45] Speaker 08:
I mean, I really think with this, with the statute tells them to do is to take the best available scientific and commercial data and

[00:01:53] Speaker 08:
take it where it leads.

[00:01:55] Speaker 08:
And I think anything that puts a thumb on the scale or considers worst case scenarios or even breaks ties is going to take them away from the mission that Congress gave them with that direction to use the best available scientific and commercial data.

[00:02:11] Speaker 08:
And I think in a sense, this biological opinion is an example of why what seems like it might sound reasonable, which is, ah, well, you do everything you can

[00:02:23] Speaker 08:
And then, like, you know, at the last stage, you know, kind of like Chevron exhausted every other statutory tool in the toolbox.

[00:02:31] Speaker 06:
And then only then it's like Chevron or Lenity or any doctrine like that where, like, you shouldn't get to the tie too quickly.

[00:02:43] Speaker 06:
But gosh, I don't know.

[00:02:44] Speaker 06:
I mean, isn't this a question of degree?

[00:02:47] Speaker 06:
I mean, this opinion sounds a little extreme because of the extent of the thumb.

[00:02:56] Speaker 06:
But I don't know why.

[00:02:57] Speaker 06:
I mean, you know, if it really were a 50-50 question, you know, it might be 100, it might be 80, and they say 80 is better for the species.

[00:03:07] Speaker 06:
It doesn't seem unreasonable.

[00:03:09] Speaker 08:
Here's the reason, even if it seems reasonable, it's not consistent with the statute.

[00:03:16] Speaker 08:
And here's why ultimately it's not even reasonable, which is the way this works in practice is this is not like, there's one data and you just have to make a judgment based on that one data.

[00:03:30] Speaker 08:
This is like a formula that considers multiple factors and it factors after factors.

[00:03:35] Speaker 08:
So if in every stage of the process, as is the case here,

[00:03:39] Speaker 08:
you break the tie in favor of the species, then when you multiply all of those tie-breaking results, you end up with a biological opinion like this, where the agency itself says, this is likely to radically, I didn't say radically, but they admit that it's likely to overestimate the impact that it's gonna have on the species.

[00:04:04] Speaker 08:
And so I think that's why what sounds innocuous

[00:04:08] Speaker 08:
in theory, is not innocuous in practice, and it creates the distortions that you see here.

[00:04:15] Speaker 08:
And it's not consistent with the statutory tax.

[00:04:17] Speaker 08:
It's not consistent with the regulatory tax.

[00:04:20] Speaker 08:
I mean, one of the reasons why I don't think the agency has expressly asked for Chevron deference here is they have a bigger problem under the regulations than they do under the statutory language.

[00:04:33] Speaker 08:
Because the statutory language talks about what's

[00:04:37] Speaker 08:
The regulatory language talks about what's reasonably certain that they are supposed to be taking into account things that are reasonably certain, and that's an even bigger problem.

[00:04:47] Speaker 07:
Well, Mr. Clement, suppose there's just no data at one of these stages in the analysis.

[00:04:55] Speaker 07:
Let's say there's just no data on mortality and canon.

[00:04:59] Speaker 07:
Right.

[00:05:00] Speaker 07:
What are they supposed to do?

[00:05:02] Speaker 08:
I think at that point they are supposed to do the best job they can based on the available scientific and partially available data.

[00:05:11] Speaker 07:
Let's say within this example, there's no data on mortality in Canada.

[00:05:16] Speaker 07:
It defies common sense to think that no whale ever died in Canada.

[00:05:21] Speaker 07:
Right.

[00:05:22] Speaker 07:
The country would be overrun with whales if that happened.

[00:05:25] Speaker 07:
So what are they to do?

[00:05:27] Speaker 07:
So they're going to do something.

[00:05:29] Speaker 08:
Sure.

[00:05:29] Speaker 08:
And what they have to do in my view is they have to take whatever data they have.

[00:05:33] Speaker 08:
So they have no data in Canada.

[00:05:35] Speaker 08:
I'm kicking your assumptions.

[00:05:36] Speaker 08:
No data from Canada, but they had some data from the United States.

[00:05:40] Speaker 08:
So then they take the data from the United States and they make reasonable assumptions about what would be different in Canada.

[00:05:45] Speaker 08:
And if they have some additional survey that says, well, when the water gets 10 degrees cooler, then something different happens, they can take that into account.

[00:05:53] Speaker 07:
They've got to take it.

[00:05:54] Speaker 07:
Drop the data from the US.

[00:05:55] Speaker 07:
They have no data on either side.

[00:05:58] Speaker 07:
But there are conditions that differ from one place to the other, but no data.

[00:06:04] Speaker 08:
Well, I think if there's no data at all, I would say that there's nothing that's particularly likely, nothing that's reasonably certain.

[00:06:11] Speaker 08:
But I think in every practical situation that arises, there's gonna be some data somewhere that they can extrapolate from.

[00:06:19] Speaker 08:
But there's a big difference if you extrapolate with a thumb on the scale and if you just extrapolate in your sort of best effort to get to the right result.

[00:06:26] Speaker 08:
And if I could just try to give you a concrete example,

[00:06:29] Speaker 08:
of kind of where this infected the analysis.

[00:06:34] Speaker 08:
If you have the joint appendix page 814, this is page 216 of the biological opinion.

[00:06:41] Speaker 08:
And if you keep in mind that the whole reason we're here is because of the unusual mortality event in 2017.

[00:06:51] Speaker 08:
Because the lobster fishery is authorized up to this point under restrictions that are things that the lobster industry can accommodate.

[00:07:01] Speaker 08:
The lobster industry is not interested in harming the right whale.

[00:07:06] Speaker 08:
They've taken a lot of efforts, including ones that are.

[00:07:09] Speaker 08:
economically counterproductive to get themselves in a position where they're compliant with the prior regime.

[00:07:15] Speaker 08:
So what gets us here and causes the agencies to reconsider things and perhaps impose new restrictions is the mortality events in 2017.

[00:07:24] Speaker 08:
What page were you on?

[00:07:27] Speaker 08:
I'm at page 814 of the Joint Appendix, page 216 of the Biological Appendix.

[00:07:33] Speaker 08:
And there is this chart, which I think helpfully illustrates kind of who's responsible for the event of why we're here, which I'm not suggesting that that's the sum total of the analysis.

[00:07:46] Speaker 08:
But when you're trying to make a likely judgment about real world scenarios, if you look at this chart, and it's talking about the confirmed entanglements and the ones that have led to fatalities,

[00:07:58] Speaker 08:
If you look at the confirmed U.S.

[00:07:59] Speaker 08:
column, it is essentially a straight line from 2010 to 2018, and there's about one a year.

[00:08:07] Speaker 08:
And in the years 2017 to 2018, 2016 to 2018, which might be the most relevant years for the unusual mortality event that has us all here and causes us to change the regulatory approach, there's one each year, and none of them involve serious injury or mortality.

[00:08:27] Speaker 08:
On the other hand, if you look at the confirmed Canada column, it is clear that they went from 0 to 1 for every year to having a real problem with multiple entanglements every year as many as 8 in 2017.

[00:08:45] Speaker 08:
And, you know, essentially all of the problem that has us here is a problem that is a Canadian problem.

[00:08:54] Speaker 08:
But if you look just a little bit further down on that same page in the first paragraph under the column, you will see that what the agency did there is it basically discarded that data because it thought that there was some better data on starting analysis in a different

[00:09:11] Speaker 08:
data set and then said in explaining why didn't ultimately rest on this data.

[00:09:17] Speaker 08:
It said the approach provides the benefit of the species and a more conservative estimate of total right whale entanglement.

[00:09:24] Speaker 08:
Well, you bet it does.

[00:09:25] Speaker 08:
But it obscures the basic fact here that the unusual mortality event that has us all here today

[00:09:32] Speaker 08:
Is a phenomenon that the best available scientific and commercial data make pretty clear is happening in Canada because of the snow crab fisheries and is because the climate changes and the like have caused the migration patterns mean that there are more whales.

[00:09:52] Speaker 08:
coming into contact with vessels and fishery equipment in Canada.

[00:09:57] Speaker 08:
And, you know, and so this to me, that's just like a dramatic illustration that what seems like a relatively innocuous sort of tie breaking rule ends up in practice, causing the agency to simply ignore some of the best available and scientific data.

[00:10:13] Speaker 03:
And part of the reason we focus on this, I mean, you know, Mr. Clement, are these arguments in your view going to the reasonableness

[00:10:21] Speaker 03:
of what the agency did or going to the fact that the agency acted contrary to law.

[00:10:27] Speaker 03:
Because I think it is really important to disentangle which arguments go to which part of that analysis.

[00:10:36] Speaker 08:
Yeah, and thank you, Judge Rao.

[00:10:38] Speaker 08:
And I was actually just explaining that these arguments that I've just been making, I think, do go to the statutory authority and the statutory error.

[00:10:49] Speaker 08:
And I was about to explain that, in fact, what I was just showing you is an illustration of one of the manifestations of the error.

[00:10:56] Speaker 08:
And my co-appellants have drilled down at a level and said some of these things are reasonable.

[00:11:04] Speaker 08:
We made a conscious effort

[00:11:05] Speaker 08:
in our brief to focus on what we identified as two overarching errors that we think fundamentally skewed the analysis.

[00:11:13] Speaker 08:
And that is the thumb on the scale, the worst case scenarios instead of the best available scientific data.

[00:11:20] Speaker 08:
And what I haven't had a chance to talk about yet, but is also this phenomenon where the consulting agency has effectively pre-baked all of the draconian restrictions just into the proposal.

[00:11:32] Speaker 06:
Before you get to your Q2, just on that point from Judge Rao, is it fair to say that your Q1

[00:11:42] Speaker 06:
Framing this as a threshold legal question is sort of the sum total of all of the individual errors, back-end manifestations of this plus this plus this could make the thing arbitrary, could make the decision arbitrary.

[00:11:59] Speaker 08:
Yes, I mean, what I would say is this happens to be a statutory error at the threshold, essentially, that then manifested itself in a number of errors that you could say are even if even if we wouldn't necessarily find that any one of the decisions on the back end was itself.

[00:12:22] Speaker 08:
Yes, I might, I might quibble and say that, you know, at that point, what, you know, what, what the problem would be was contrary to law as opposed to arbitrary and capricious.

[00:12:32] Speaker 08:
I think this is, you know, I fully embrace the arguments that the state of Maine and the other intervenors have made.

[00:12:37] Speaker 08:
that this is arbitrary and capricious as a bonus.

[00:12:41] Speaker 08:
Um, but I also think it's just contrary to law across the, across the board.

[00:12:46] Speaker 08:
And of course, you know, she surprised nobody that if you deviate from kind of the mission that Congress has given you, you're going to produce results that look arbitrary and capricious as well.

[00:12:55] Speaker 07:
This is all about the biological opinion.

[00:12:58] Speaker 07:
So, um, but as I understand your claim to standing here, it rests on the, uh, on the take reduction, right?

[00:13:07] Speaker 08:
No, we think our understanding, we challenged biological opinion, the conservation framework and the rule.

[00:13:17] Speaker 07:
Okay.

[00:13:18] Speaker 07:
Well, what, what provides you with a standing?

[00:13:21] Speaker 07:
All three biological.

[00:13:23] Speaker 07:
How does the biological opinion bearing injuring you?

[00:13:27] Speaker 08:
It is injuring us because it is effectively conditioning the authorization of the fishery.

[00:13:34] Speaker 08:
under a view of the Endangered Species Act that necessarily results in draconian restrictions being imposed on us.

[00:13:41] Speaker 07:
Ones that have already been imposed?

[00:13:43] Speaker 07:
Yes, in part.

[00:13:44] Speaker 07:
So you are challenging the trade, in other words, you would like the existing rule vacated?

[00:13:53] Speaker 08:
Well, I think we would like it sort of invalidated, but not vacated, you know, remand without fully vacating it.

[00:14:00] Speaker 08:
Why is that?

[00:14:01] Speaker 08:
Because I mean, you know that I think there's at least an argument and maybe it's different after the intervening appropriations act.

[00:14:09] Speaker 08:
But you know, we can't operate fishery unless we have a biological opinion in place.

[00:14:17] Speaker 08:
And so that's why throughout this litigation we have asked for, you know, remand without vacature because because it's you know, and maybe it's definitely contradictory.

[00:14:30] Speaker 07:
First of all, why doesn't the Appropriations Act give you what you need?

[00:14:36] Speaker 08:
Well, it doesn't give us... I mean, there's two things.

[00:14:39] Speaker 08:
One, it may give us what we need in the sense that we may not need a biological opinion in light of the Appropriations Act, but we are still suffering continued injury from the conservation framework.

[00:14:53] Speaker 08:
How?

[00:14:54] Speaker 07:
Because, you know, I would actually ask the framework is all about things to come, isn't it?

[00:14:58] Speaker 08:
No.

[00:14:59] Speaker 08:
And with I think that's a critical sort of the conservation framework has four parts.

[00:15:05] Speaker 08:
And the first part of it is the rule.

[00:15:09] Speaker 08:
And then the second part is a gill net proposal.

[00:15:12] Speaker 08:
And then the third part is something they were planning on doing.

[00:15:15] Speaker 07:
And so now the second part they've abandoned.

[00:15:17] Speaker 08:
Well, I mean, I don't mean to be pedantic, but it's the third part they've added, because there's the second part is with gill nets and that's not directly affected by shows the third part.

[00:15:26] Speaker 08:
The third part, they said they've abandoned, but here's what they haven't abandoned.

[00:15:30] Speaker 08:
They haven't vacated the conservation framework and their own declaration in support of non-mootness says that they will continue to use the conservation framework or non-regulatory action.

[00:15:45] Speaker 08:
now what does that mean well i think they are seriously vague but they do give us some examples and now i'm reading from the uh the the last the penultimate page of their declaration in support of muteness this is the pentony declaration

[00:15:59] Speaker 08:
And the examples of the non, and I'm literally quoting that quote, examples of non-regulatory actions described in the conservation framework include providing updates as appropriate on the implementation of the framework to various third parties.

[00:16:14] Speaker 08:
I don't know how you say you've abandoned the framework or it's no longer an operative document when you're giving regulated parties updates on the implementation of the framework.

[00:16:23] Speaker 08:
And then the next thing they say, and this really gets to the point of continuing injury,

[00:16:29] Speaker 08:
And whether you thought this would be sufficient if we were coming in today initially with our challenge is obviously a separate question of whether we suffer the kind of continuing injury that avoids mootness.

[00:16:40] Speaker 08:
And on that, they say that they will be updating any available data to assess, and again, I'm quoting, to assess progress towards achieving the conservation framework's goals.

[00:16:51] Speaker 08:
Well, the stated goal of the conservation framework in 2030

[00:16:56] Speaker 08:
which is after the appropriations rider sort of pause expires, is to get us down to a take level of 0.136, which- That's what you just read that was all about things that they're going to do in the future, right?

[00:17:11] Speaker 07:
No, it's what they're doing now.

[00:17:12] Speaker 07:
They're assessing data on a day-to-day basis based on- How does their assessment of the data then today affect you?

[00:17:20] Speaker 08:
It affects us in the sense that there are ongoing meetings in the take reduction team meetings that are mandatory meetings.

[00:17:31] Speaker 08:
And they're all being done with an eye towards ensuring there's compliance of the fishery with both the ESA and the Marine Mammal Protection Act.

[00:17:40] Speaker 07:
And doesn't the act give you that, the appropriations act?

[00:17:43] Speaker 07:
No.

[00:17:43] Speaker 07:
It is in compliance?

[00:17:45] Speaker 08:
We're in compliance until 2028, but we still have to have ongoing meetings and we have to figure out what's going to happen in 2029 and 2030.

[00:17:53] Speaker 08:
And they are telling us that right now they are evaluating the current data in light of the goals in the conservation framework, which for 2030 are a wholly unrealistic 1.36 and their goal is based on all of this bad science and all of this bad data.

[00:18:07] Speaker 08:
Now, you know, to be clear, that's all, to me, fully sufficient to satisfy the standard for continuing effect to avoid mootness.

[00:18:18] Speaker 08:
And, you know, the West Virginia EPA case obviously speaks directly to that.

[00:18:23] Speaker 08:
But we're also suffering injury right now from the rule.

[00:18:27] Speaker 06:
There's no doubt, no doubt in my mind, you have a live challenge to phase one, the rule.

[00:18:35] Speaker 06:
And based on that challenge, we can look at the biological opinion to the extent it supports them.

[00:18:44] Speaker 06:
But I guess I'm a lot more skeptical about, I had thought the framework consists of the rule, which fine, you have your challenge, and then phases three and four, which are high in the sky, might happen in the future.

[00:19:01] Speaker 06:
And Congress has now said,

[00:19:03] Speaker 06:
aren't going to happen.

[00:19:05] Speaker 06:
You're in compliance with phase 3 and 4.

[00:19:08] Speaker 08:
I would urge you to take another look at our declarations for the expedition motion.

[00:19:13] Speaker 08:
Obviously they weren't written with an eye towards the intervening congressional act, but they made clear that

[00:19:22] Speaker 08:
You know, the, the industry as one would expect, like, you know, they, they have to today.

[00:19:26] Speaker 08:
Try to make investments to decide whether to buy another boat, buy more traps all with an eye towards what's the regulatory environment going forward.

[00:19:35] Speaker 08:
And what the declaration shows.

[00:19:38] Speaker 08:
Is to a moral certainty.

[00:19:41] Speaker 08:
that the agency is sticking by its guns and the goals as set up in the biological opinion in the conservation framework.

[00:19:51] Speaker 08:
And we just can't ignore it.

[00:19:54] Speaker 06:
We can't take... We don't know how that's gonna manifest itself in future regulations.

[00:20:02] Speaker 06:
It seems like a pretty bad prudential ripeness problem if we're gonna try to guess

[00:20:09] Speaker 06:
Not at phase one, which is on the books harming you when we look at that, but future agency action.

[00:20:15] Speaker 08:
So I don't, you know, it's not my burden to convince you that I win this case the hard way and the easy way.

[00:20:21] Speaker 06:
And you've already told me that you think that, you know, that- I mean, I've told you there are different actions under review and we have a clean shot at one of them, but I'm skeptical about the rest of it.

[00:20:33] Speaker 08:
Well, then let me address your skepticism head on because the question here is not what, like, I just don't think you get to prudential rightness the way you would if we walked into court today.

[00:20:45] Speaker 08:
And said, I'm going to show you article three standing to challenge the biological opinion of the conservation framework.

[00:20:51] Speaker 08:
The question that is relevant for moon is.

[00:20:55] Speaker 08:
And again, the other cases, late law, other cases that we cite in our opposition make this clear.

[00:21:01] Speaker 08:
But I also think since the West Virginia case is recent in a lot of people's minds, it makes this very clear that the standard is different when you're at mootness.

[00:21:12] Speaker 08:
And the standard, the burden shifts to the government, and the government has to show that there's no possibility that the injury doesn't linger.

[00:21:19] Speaker 08:
And here, not only have they not carried their burden, they've actually essentially put themselves out of that burden by saying they're going to continue to use the biological opinions for non-regulatory action.

[00:21:33] Speaker 03:
Then I guess I have a question.

[00:21:36] Speaker 03:
Why are you not seeking vacator of the biological opinion?

[00:21:41] Speaker 03:
I mean, if we were to agree with you on the first question, would it be open to us to vacate the biological opinion and not the final rule?

[00:21:54] Speaker 08:
So the short answer is, I think it is debatable, but I think the better view is that after the appropriations rider, if I can call it, it is open to you to vacate the biological opinion.

[00:22:11] Speaker 03:
Why are you not seeking that?

[00:22:15] Speaker 08:
Well, I mean, the reason I'm not seeking that is principally a historical artifact of the fact that up until the point that the biologic appropriations rider came into play.

[00:22:27] Speaker 08:
So throughout all of the district court proceedings, we affirmatively ask, and every brief we filed in this court up until the mootness response,

[00:22:36] Speaker 08:
We were very clear that we were asking for essentially remand without vacancy or because you needed the biological because we needed the biological opinion to operate the fish.

[00:22:47] Speaker 03:
I think the best reading, do you need to operate the fishery or the final rule or are they inextricably connected in a way that you need both in order to operate the fishery?

[00:23:00] Speaker 08:
So I think that the best answer to that is what we absolutely need is biological opinion.

[00:23:08] Speaker 08:
I think the agency in this case has sort of tied them together in a way that's not our fault and really didn't matter at all until the appropriations rider.

[00:23:19] Speaker 08:
But the biological opinion is an evaluation of the conservation framework, the first piece of which is the rule.

[00:23:26] Speaker 08:
So in their mootness papers, they try to kind of disentangle them in ways that they just don't think work, given the history of this case.

[00:23:33] Speaker 08:
But just to be as clear as I can, for purpose, until the appropriations act, it was our considered, and I think absolutely correct view, that we needed the biological opinion to operate the fisheries.

[00:23:47] Speaker 08:
So we didn't want to get a vague and true biological opinion.

[00:23:51] Speaker 03:
Now, I just- And is that still true after the act?

[00:23:56] Speaker 08:
I think the better view is no.

[00:24:00] Speaker 08:
which is to say, I think it's not true.

[00:24:02] Speaker 08:
I think my reading of the act says that, you know, that sort of, we, we, we have sort of a sufficient basis to operate, um, and under the final rule, that's sufficient.

[00:24:14] Speaker 08:
I don't think it says necessary, which is why I do think, you know, and, and just to be clear about that and to clear about the sort of continuing injury that we suffer, I mean, you know, as part of our own efforts to try to be responsible and out of our own concerns about the right whale,

[00:24:29] Speaker 08:
We don't have a particular objection to a lot of what's in the final rule in terms of gear marking and things that we think will ultimately just make it more obvious that we are not the source of the problem.

[00:24:42] Speaker 08:
But one of the things the final rule did kind of threw in as a relatively unanalyzed bonus is to have an offshore closure of the whole parts of the Gulf of Maine that, and that, I mean, talk about irreparable injury.

[00:24:58] Speaker 08:
My clients can't go there because of that aspect of the rule.

[00:25:02] Speaker 08:
And so I think one way we could get relief here is putting aside for a second exactly how you stylize it, whether it's a remand without vacatur or it's a vacatur of the biological opinion, but only because of the Appropriations Act.

[00:25:17] Speaker 08:
But if one of the things that came out of that is that we ended up with the final rule without the offshore closure, that would have a huge immediate on the ground real world effect that would benefit my client.

[00:25:29] Speaker 03:
Can I ask you, I have some other questions about the merits of Q2, but as to remedy for your second question about the conservation framework, I mean, if we were to find that the agencies acted ultra-viris by imposing the conservation framework in the way that it was imposed, would that be a basis for vacating the conservation framework?

[00:25:57] Speaker 08:
I think it would be.

[00:26:00] Speaker 08:
So is the short answer.

[00:26:02] Speaker 08:
So yes, I don't know if we're complicated.

[00:26:04] Speaker 08:
Yes.

[00:26:05] Speaker 07:
And what is it that you would need in order to re-enter the now off-limits zone?

[00:26:12] Speaker 08:
We cannot enter the off-limits zone with the current final rule in place.

[00:26:20] Speaker 08:
And if I can say, I mean, I know over time, but we'll keep, we'll keep going.

[00:26:25] Speaker 08:
I mean, I'd like to say a few words on the merits of QP too, because Judge Randolph mentioned you had questions on that.

[00:26:31] Speaker 06:
We'll let you do that.

[00:26:32] Speaker 06:
But if we remand without vacating, that restriction is still in place now.

[00:26:39] Speaker 08:
It is, but if you, you know, my sort of understanding is, you know, there are different ways to, you know, sort of remand without vacating.

[00:26:48] Speaker 08:
And if there's a remand,

[00:26:49] Speaker 08:
With a, you know, essentially a requirement that they do the math over or strong suggestion that they modify the rule in order to come into compliance.

[00:26:57] Speaker 08:
You know, I think they might, they might let you, but our order do that.

[00:27:02] Speaker 08:
No, they came to final rule or vacate final rule in part, you know, it could, but.

[00:27:07] Speaker 08:
I think that just gets, again, it's a little bit complicated because the Appropriation Act comes in very late in the litigation and I don't think it moves anything, but it does maybe change the battlefield in terms of what precise relief would be most appropriate.

[00:27:24] Speaker 08:
I don't anticipate an argument my friends would make, but since they seem to think that sufficient means necessary, they would probably say, we can't vacate the final rule because that's necessary for compliance under the Appropriations Act.

[00:27:41] Speaker 08:
That's not how I read it.

[00:27:43] Speaker 08:
I read it as sufficient means sufficient.

[00:27:46] Speaker 08:
If the agency ultimately came back and said, all right,

[00:27:48] Speaker 08:
All you need is we have a final rule without the offshore closure and that's all that is necessary for compliance with the ESA and the MMPA.

[00:27:57] Speaker 08:
We think it would be valid under that and the statute would provide, essentially in our views, the statute provides a ceiling, but it doesn't provide a floor.

[00:28:06] Speaker 06:
Unless there are other questions on that, why don't you go to the merits of Q2?

[00:28:10] Speaker 08:
Sure.

[00:28:10] Speaker 08:
On Q2, I really do think that this is a pretty serious evasion of the basic structure of the ESA and how it's supposed to work, which is, I think, the way that the Act is supposed to work.

[00:28:25] Speaker 08:
And consistent with the amendments and virtually all the provisions we're talking about here were amended after TVA against Hill to prevent sort of a replication of the South, the Teleco damn in a way that doesn't make economic sense to most people who are observing it.

[00:28:41] Speaker 08:
And so these provisions are basically designed to ensure that there's a place where you take into account the countervailing effects of the action, even in a case where there's some jeopardy or some incidental take.

[00:28:55] Speaker 08:
And if you allow the consulting agency, not the action agency, but I don't think the action agency can do it either.

[00:29:02] Speaker 08:
But if you allow the consultant agency here as is conceded to be the case and sort of come in and essentially say on the front end, look, before you run this through the process.

[00:29:12] Speaker 08:
that is supposed to get you to cost benefit analysis to a degree.

[00:29:17] Speaker 08:
You got to impose all these draconian restrictions on the fishery and then we'll run that through the process and we'll get a no jeopardy finding and we'll even not make an incidental take finding

[00:29:29] Speaker 08:
Of course, it's complicated because I have to be challenged by my friends on the other side below as, you know, as not consistent with either the ESA or the MNPA.

[00:29:40] Speaker 03:
But my question I have about this is even if we accept your argument that what they did here is in, you know, is in real tension with the ESA and the way it's supposed to work with action agencies and the consulting agencies.

[00:29:57] Speaker 03:
Surely under the ESA, there's some informal consultation that goes on, right, between action agencies and the consulting services.

[00:30:08] Speaker 03:
So where would we draw a line between, you know, what might be a legitimate kind of back and forth that seems to be envisioned by the statute and the regulations and a situation such as this where you are saying, you know, they've gone really too far in imposing these regulatory requirements?

[00:30:28] Speaker 08:
So two things, your honor, one is, you know, I think the bright line rule at a minimum is the consulting agency can't do it.

[00:30:36] Speaker 08:
So, you know, if the action agency wants to sort of, you know, kind of talk to the consultant agency informally and then make their formal proposal, that seems to be different from a situation like this where, you know, essentially the proposal that gets considered by the consulting agency is really the product of the consulting agency.

[00:30:55] Speaker 03:
That's 1, just, I think, clear benchmark, but I also think that is that really the benchmark if the action agency is sort of coerced into doing that, or just sort of adopts it wholesale.

[00:31:08] Speaker 03:
Like, it can't just be.

[00:31:09] Speaker 03:
I mean, I'm not sure if that is a distinction that would necessarily make the action more lawful.

[00:31:17] Speaker 08:
Well, I would say that that that's something that's clearly ultra virus, but I would also say that to the extent you're envisioning a circumstance where the action agency is essentially coerced into it.

[00:31:28] Speaker 08:
Then that would also be a violation of the statutory structure and contrary to law.

[00:31:32] Speaker 08:
And I think this support should make clear that like, you know, the agencies are supposed to deal with the issues through consultation.

[00:31:41] Speaker 08:
And the consultation involves like an actual, like what the agency actually wants to do.

[00:31:46] Speaker 08:
And then the consulting agency brings to bear its expertise as to whether that's consistent with the app in a way that ultimately does two critical things in my view.

[00:31:57] Speaker 08:
One, it brings cost benefit analysis to bear in a direct way.

[00:32:00] Speaker 08:
But second, it doesn't cut the committee out of the process entirely.

[00:32:06] Speaker 03:
And this may have been

[00:32:08] Speaker 03:
I do wonder to hear whether the action agency itself has the statutory authority to adopt the conservation framework, right, because the underlying action here is the approval of the fishery, you know, under these fishery management plans and the Magnuson Stevens Act.

[00:32:32] Speaker 03:
I mean, is there anything in those statutes that gives the action agency even the lawful authority to impose the conservation framework?

[00:32:43] Speaker 08:
We don't think so.

[00:32:45] Speaker 03:
Is this not something that you focused on in your briefing?

[00:32:47] Speaker 03:
But I think there are two questions.

[00:32:49] Speaker 03:
There's a question about whether the consulting agency can impose these requirements.

[00:32:54] Speaker 03:
You make a number of arguments why they cannot under the statute.

[00:32:57] Speaker 03:
But I have a question about whether

[00:33:00] Speaker 03:
even the action agency here could impose that under the, I mean, because the action that's at stake is approval of the fisheries.

[00:33:08] Speaker 03:
And actually, you know, I mean, the statutes are actually very detailed about what factors they're allowed to consider in that process.

[00:33:16] Speaker 03:
And none of those factors involve, you know, endangered species concerns.

[00:33:23] Speaker 08:
So what I would say to his route is, I mean, I had an answer at the podium for you, which is, I don't think that the action agency has the authority to do that.

[00:33:32] Speaker 08:
I also have a defense for why we didn't brief that.

[00:33:35] Speaker 08:
And the defense, why we didn't brief that is because the parties agree that it was a consultation agency that did it here.

[00:33:41] Speaker 08:
And that seems to me to be kind of one clear problem, but so, so, but there is a lurking problem.

[00:33:49] Speaker 08:
Um, and, you know, and, and, you know, if you really want us to be happy to brief it, but, you know, the reason we didn't brief it is because it really isn't presented in this particular case.

[00:33:59] Speaker 03:
But I agree with the agency does make some arguments that it wasn't the consulting agency that adopted it.

[00:34:05] Speaker 03:
I mean, I know you disagree with that, but they do seem to make some arguments in that direction.

[00:34:12] Speaker 08:
Well, that's not how I read their brief.

[00:34:14] Speaker 08:
I mean, in all candor.

[00:34:16] Speaker 08:
Maybe they will, you know, they certainly argued that it is, you know, there's a symbiotic relationship or there's back and forth, but I took them to concede.

[00:34:27] Speaker 08:
and not defend judge boseberg's rationale judge boseberg's clear rationale was you know that this was the action agency and they can do it and we in our opening brief said he's just wrong about that it was consulting agency and i took their responsive brief to essentially not defend judge boseberg's reasoning on that point and concede it and the only other thing i'd say about this is

[00:34:52] Speaker 08:
This is, you know, I would imagine that my friends on the other side are going to come up here and they're going to say, well, you know, either something detailed about the fisheries compact that governs the fishery, or they're going to say something about the beginning of the Endangered Species Act that sort of says that every agency has some responsibility to avoid problems under the ESA.

[00:35:13] Speaker 08:
But what I would say is you gotta read, I would say that it is ultra virus and you should read the authority under the organic statute of all the agencies in light of the ESA.

[00:35:24] Speaker 08:
And it is a problem if an action agency takes it on itself to kind of trim its sales.

[00:35:33] Speaker 08:
Because of the ESA, and not because of anything that has to do with their organic responsibilities, then it does tend to circumvent the structure of the Act.

[00:35:41] Speaker 08:
And in particular, it tends to circumvent the endangered species committee because the Act envisions a scenario for how to deal with situations where there's just no good way to avoid jeopardy.

[00:35:53] Speaker 08:
And that's the committee.

[00:35:54] Speaker 08:
And just to finish this last night, like, it's kind of really powerful evidence that they evaded the politically responsible committee here that Congress had to intervene.

[00:36:07] Speaker 07:
Let me go back to Judge Rao's opening point about, I think, maybe inevitable informality and the change between the two clear divisions of the same agency.

[00:36:20] Speaker 07:
So the

[00:36:22] Speaker 07:
The action agency comes in with a proposal, and the consulting agency says, look, I can look at this and tell you on its face it's not gonna pass, right?

[00:36:34] Speaker 07:
Why don't you just redraw it, or we'll read it.

[00:36:38] Speaker 07:
I mean, there's no point in putting this through the process, it's gonna fail.

[00:36:44] Speaker 07:
That somehow engaged the procedure?

[00:36:46] Speaker 08:
I don't think if all of that, if that's all that happens, I don't think that evades the procedure.

[00:36:52] Speaker 07:
And then the action agency says, well, look, what do you think is necessary?

[00:36:58] Speaker 07:
Can you give us a hand with this?

[00:36:59] Speaker 07:
What should we build in?

[00:37:01] Speaker 08:
And if it becomes, I mean, you know, this is why the questions are in a sense related, but you know, I mean, part of the problem is if, you know, the way the statute I think is envisioned is the action agency is to a degree supposed to be playing offense.

[00:37:14] Speaker 08:
and the consulting agency is supposed to be playing defense.

[00:37:18] Speaker 08:
An informal consultation is great, but if they sort of switch sides or the action agency essentially capitulates, then the party that's playing defense has a natural incentive to sort of look at everything from the perspective of a defense and sort of, even when they're not explicit about it as here, kind of err on the side of the species.

[00:37:42] Speaker 08:
And if that, you know, and I think you can write an opinion that says, look, informal consultation is fine, but you can't let the consulting agency get to the point that they're taking over the process.

[00:37:53] Speaker 08:
And you, as the, as the action agency, you can't rebate things to the point that you're evading this action.

[00:37:59] Speaker 07:
Well, the action agency could always come back and say, no, we don't want to do that.

[00:38:02] Speaker 07:
If it won't fly, it won't fly.

[00:38:03] Speaker 07:
But this is our proposal.

[00:38:05] Speaker 07:
They didn't say.

[00:38:06] Speaker 07:
I said, instead, give us a hand.

[00:38:09] Speaker 07:
Yeah.

[00:38:09] Speaker 07:
I mean, I agree.

[00:38:10] Speaker 07:
To me, you're asking for a paper shuffle to no purpose.

[00:38:15] Speaker 08:
I don't think so.

[00:38:16] Speaker 08:
Because I think if you make clear that the action agency is not supposed to sort of pre-bake its defensive crouch into its proposal, then you will have a situation where the statute works as intended.

[00:38:27] Speaker 08:
And it may, you know, my friends on the other side want to say, well, you know, the endangered species committee has only met six times.

[00:38:34] Speaker 08:
I would say that's you know, that's a bug, not a feature.

[00:38:38] Speaker 08:
Because if you look at the statutory tax, most of the words are describing the Endangered Species Committee.

[00:38:44] Speaker 08:
And I think Congress amending the statute in light of TBA against Hill expected the Endangered Species Committee to be convened more than six times

[00:38:54] Speaker 08:
in the next, you know, what has it been, 45 years or whatever?

[00:38:57] Speaker 08:
And I think that, again, I just point you, you know, the forces that caused Congress, which, you know, takes a lot to get over the inertia to intervene here is the fact that you've finally got politically responsible people to take a look at this and say, we all appreciate the right whale.

[00:39:17] Speaker 08:
We all want to do the right thing by the right whale.

[00:39:20] Speaker 08:
But fun, fun.

[00:39:21] Speaker 08:
And you don't just take out an entire industry.

[00:39:26] Speaker 08:
Especially when all signs point to the real problem.

[00:39:31] Speaker 08:
Lying north of the board and the Canadians to be clear are being responsible and trying to do their level best to deal with it too.

[00:39:37] Speaker 08:
But my point is.

[00:39:39] Speaker 08:
Yes, Senator Collins, you know, identify this as the greatest regulatory overreach that she has seen.

[00:39:46] Speaker 08:
I think part of that is some of the things that we pointed to in our briefs and some of the problems that infected this.

[00:39:53] Speaker 08:
But part of it is that the statute was designed to, you know, if there really is a case, and I'm sure my friends on the other side think this, where if you just kind of continue business as usual, jeopardy is just unavoidable.

[00:40:07] Speaker 08:
Like the statute has a fix for that.

[00:40:10] Speaker 08:
At least as to the ESA, it's a little complicated because the MMPA may be a little distinct in this regard, but at least as to the ESA, which is the focal point of the biological opinion, that's the safety valve for the politically accountable process to be brought there.

[00:40:24] Speaker 06:
The action agency can go on offense, push as hard as they want to do whatever they want.

[00:40:34] Speaker 06:
be adversarial with the reviewing agency and their ultimate trump card is to go to that committee.

[00:40:41] Speaker 06:
They don't have to take that posture, right?

[00:40:46] Speaker 06:
They can choose to adopt a more conservative, species-friendly action, right?

[00:40:54] Speaker 06:
Maybe not.

[00:40:55] Speaker 08:
And this is the ultra virus point that Judge Rau and I were discussing.

[00:40:59] Speaker 06:
I think there's a good argument.

[00:41:00] Speaker 06:
Put aside the point about whether there's something in the phishing statutes that would make them authorized.

[00:41:06] Speaker 06:
I'm just talking about the dynamic between the action agency and the reviewing agency.

[00:41:12] Speaker 06:
And it seems to me what's going on here is the reviewing agency has something akin to a veto power on the back end of a process.

[00:41:25] Speaker 06:
And they are leveraging that to try to influence what happens on the front end.

[00:41:31] Speaker 06:
But I mean, so what?

[00:41:33] Speaker 06:
You know, the president has a veto power with respect to legislation.

[00:41:38] Speaker 06:
He says to Congress about a pending bill

[00:41:41] Speaker 06:
Don't even think about putting this on my desk.

[00:41:44] Speaker 06:
I will veto it, but I will sign a bill, a rewritten bill with the following features, and Congress thinks we're really coerced.

[00:41:54] Speaker 06:
We won't be able to override the veto.

[00:41:56] Speaker 06:
We'll change the bill, pass what the president wants, and he signs it.

[00:42:01] Speaker 06:
The president is not acting ultra-virus vis-a-vis Article 1.

[00:42:06] Speaker 06:
I agree with that.

[00:42:08] Speaker 08:
Let me say two things that are different here.

[00:42:10] Speaker 08:
First, the clear bright line rule.

[00:42:12] Speaker 08:
Whatever else is true, the action agency that's supposed to play offense, even if they want to trim their sales on their own, then there's a question that Judge Rao and I were discussing about whether that's consistent with their organic statute.

[00:42:25] Speaker 08:
But at a minimum, they can't hand the keys over.

[00:42:27] Speaker 06:
And that's what happens.

[00:42:28] Speaker 06:
Well, that's what I'm pushing on.

[00:42:29] Speaker 06:
I'm not sure why not.

[00:42:32] Speaker 06:
The reviewing agency can exert as much pressure as they want and the action agency can either pull back and defensively or they can fight them.

[00:42:44] Speaker 06:
They say, no, we want to authorize the fishery, no condition.

[00:42:49] Speaker 06:
You go ahead and say, there's no reasonably prudent alternative and we'll fight you before the committee.

[00:42:56] Speaker 06:
That's their choice.

[00:42:57] Speaker 06:
Just two points, Your Honor.

[00:42:59] Speaker 08:
One is that

[00:43:01] Speaker 08:
Even, again, the one thing they can say, yeah, they can hear that they're pushing back, they can do all that, but in the same way that Congress can't just say to the president who threatens the veto power, all right, you just write the legislation and we're not even going to go through bicameralism for them and ourselves.

[00:43:17] Speaker 08:
You write the legislation and it becomes law.

[00:43:21] Speaker 08:
And so, so that's why I keep the people in their lanes.

[00:43:24] Speaker 08:
Here's the 2nd thing.

[00:43:26] Speaker 08:
This is not a direct analog to sort of the constitution or article 1 and article.

[00:43:32] Speaker 08:
You know, 2 and article 3, because here.

[00:43:34] Speaker 08:
The, the, the consulting agency has a veto subject to a veto.

[00:43:40] Speaker 08:
And that's the way the statute was designed.

[00:43:43] Speaker 08:
And if the action agency just goes, you know, pause up every time, just because they view the consulting agency as having the ultimate veto, that's inconsistent with the statutory structure.

[00:43:57] Speaker 08:
Because, and it cuts out.

[00:44:00] Speaker 06:
And look, I don't think a believer- Because it doesn't eliminate the option of the action agency

[00:44:09] Speaker 06:
to push as hard as they want and fight the reviewing agency before the ultimate authority, which is the politically accountable ESA review committee.

[00:44:21] Speaker 08:
With all due respect, if the action agency was explicit,

[00:44:25] Speaker 08:
And they said, okay, we are going to impose all these draconian restrictions that we don't want.

[00:44:32] Speaker 08:
Because we just want to get the consulting agency to approve.

[00:44:37] Speaker 08:
And they were absolutely explicit about that.

[00:44:39] Speaker 08:
I would say that is contrary to law.

[00:44:41] Speaker 08:
That is not valid government action.

[00:44:44] Speaker 08:
Now, I think what a lot of these questions are going to is the idea that, you know, once you write your opinion, no agency is going to be stupid enough to say it out loud that way.

[00:44:52] Speaker 08:
But I still think that there is virtue to signaling that if it were explicit, that is not a proper interpretation of the statute because it does cut out the committee and it's not functioning.

[00:45:07] Speaker 08:
Like, I'm as big, you know, I'm a big believer as a unitary executive as the next guy, but

[00:45:12] Speaker 08:
This statute does give different responsibilities to different agents.

[00:45:17] Speaker 08:
And if the one agency basically says, like, we're not we're we are permanently going to admit that we're not doing our job or we're essentially going to essentially do their job for them on the front end.

[00:45:28] Speaker 08:
It does circumvent the statute, it circumvents the cost-benefit analysis, it's supposed to happen on the back end, and it essentially makes the Endangered Species Committee a nullity, even though, again, just look at the statute.

[00:45:40] Speaker 08:
You can't look at that statute and say Congress wanted that Endangered Species Committee to just be the sordidama, please.

[00:45:47] Speaker 08:
I mean there it's most of the relevant statutory language that was added after tba against hill those were all the details of how that committee works and the circumstances where Secretary of State can override the committee if there's a treaty violation and then the national defense people can override the Secretary of State if there's a i mean so so like you know there is let me give you one more and it's it's probably the same hypo as right legislation but give you a sense where i'm coming from which is um

[00:46:18] Speaker 06:
nominations and advice and consent, right?

[00:46:22] Speaker 06:
Senate is on the back end.

[00:46:23] Speaker 06:
They can't make the nomination.

[00:46:25] Speaker 06:
All they can do is veto the president's nomination, right?

[00:46:30] Speaker 06:
Let's say we are very late in a presidential term and there's a Supreme Court vacancy and the Senate says to the president, you know, if you want to, if you want to nominate you, you must pick candidate X

[00:46:47] Speaker 06:
in which case we will move heaven and earth to confirm the nominee, but nobody else.

[00:46:52] Speaker 06:
And president says, okay, and picks that nominates that candidate.

[00:46:58] Speaker 06:
And then they confirm him.

[00:47:01] Speaker 06:
So same basic- Very coercive.

[00:47:04] Speaker 06:
Very coercive.

[00:47:05] Speaker 06:
But not an abuse of the backend veto power to try to leverage what happens on the front end.

[00:47:13] Speaker 08:
Same 2 answers, which is to say 1, even conceding all of that, the Senate can't just appoint the, appoint the, the, the president can't say, all right, you guys, you're holding the cards here.

[00:47:25] Speaker 08:
So you just appointed.

[00:47:25] Speaker 08:
I like, forget it.

[00:47:27] Speaker 08:
Like, you're taking all the fun out of this for me.

[00:47:29] Speaker 08:
So you just go point person and you confirm them and take me out of the process entirely because that's what you're trying to do.

[00:47:34] Speaker 08:
That would obviously be ultra virus.

[00:47:36] Speaker 08:
But here's the second thing.

[00:47:37] Speaker 08:
The second part of the same answer is if you imagine a world where the system works the way it is, but if there's like 40 votes against the nominee or something, then it goes to the House.

[00:47:50] Speaker 08:
And then the House gets to do it.

[00:47:52] Speaker 08:
If the Senate were trying to twist the president's arm in a way that was trying to cut the House out of the process, I would think that you would say there's something problematic about that.

[00:48:02] Speaker 08:
And maybe it would be hard to police.

[00:48:05] Speaker 08:
But you'd at least want to say, as a matter of what is sort of legal and appropriate, that the Senate can't avow that we're doing something to cut out the House of the process.

[00:48:15] Speaker 06:
Same answer on my side, which is if the president goes for his home run pick rather than his compromise pick with the Senate.

[00:48:23] Speaker 06:
he can see that up for the house.

[00:48:25] Speaker 08:
And my same answer, your same answer, which is if he, if he says in his nomination speech, I'm doing this to cut the house out of the process, putting aside UQD and all that kind of stuff that would seem problematic.

[00:48:38] Speaker 03:
These hypotheticals.

[00:48:41] Speaker 03:
highlight why it's important whether the action agency has the authority at all.

[00:48:46] Speaker 03:
And Judge Katz's hypotheticals, the president is still acting within his lawful authority to nominate or to veto legislation.

[00:48:56] Speaker 03:
But I mean, if he didn't have that authority at all and the Congress was asking him to do something he didn't have the authority to do, that would make the problem worse.

[00:49:07] Speaker 03:
I do think that's a distinction.

[00:49:09] Speaker 08:
That's why the-

[00:49:11] Speaker 08:
And the only thing I would say is, I think that even when you're trying to figure out whether the action agency has the authority on the front end,

[00:49:20] Speaker 08:
you would read whatever their authority otherwise was in light of the various other parts of the process.

[00:49:27] Speaker 08:
And if there was some ambiguous authority that the agency was saying, oh, this gives us the authority to do it all on the front end, I would say the structure of the statute gives you a reason to construe that narrowly to make it kind of harmonious with the ESA.

[00:49:42] Speaker 08:
But I see my time is up, so thank you.

[00:49:44] Speaker 08:
Anything else, Judge Rao?

[00:49:46] Speaker 03:
No, thank you.

[00:49:48] Speaker 08:
Did you just notice that?

[00:49:50] Speaker 06:
We don't know.

[00:49:52] Speaker 06:
Thank you.

[00:49:53] Speaker 06:
Miss Ingalls, we'll hear from you.

[00:50:12] Speaker 02:
Good morning and may it please the court.

[00:50:14] Speaker 02:
I'm Summer Ingalls here for the federal appellees.

[00:50:17] Speaker 02:
With me at council table for the intervenors appellees is Kristen Montsell.

[00:50:22] Speaker 02:
The federal appellees ask the court to dismiss this appeal as moot or otherwise to affirm on the merits.

[00:50:29] Speaker 06:
And I'd like to begin- How is the challenge to phase one, the final rule moot?

[00:50:36] Speaker 06:
The rule is in effect, it imposes tangible

[00:50:41] Speaker 06:
economic harm on the regulated industry and they're here through their trade representative.

[00:50:46] Speaker 02:
Understood.

[00:50:47] Speaker 02:
Well, our argument as to the rule is that the act has overtaken any challenge plaintiffs might have asserted as to the rule.

[00:50:54] Speaker 02:
We maintain that the challenge is forfeited on appeal.

[00:50:57] Speaker 02:
But the act says that the rule is sufficient to put authorization of the fisheries in full compliance with the MMPA and the ESA.

[00:51:07] Speaker 02:
And we read that to imply that if the if the rule is sufficient to put these fisheries in compliance with these two statutes, then the rule could not possibly be inconsistent with those two statutes itself.

[00:51:21] Speaker 06:
And so that's a merits argument.

[00:51:23] Speaker 02:
It's a it's a merits argument in the sense that the

[00:51:26] Speaker 02:
Congress has said that the rule complies with the merits, but for present purposes, our argument is that Congress has acted and removed any ability to put forward a judgment as to the merits of the rule.

[00:51:40] Speaker 02:
Congress has deemed the rule sufficient to put these fisheries in compliance and therefore by implication has said that the rule itself complies with the ESA.

[00:51:50] Speaker 02:
Taking a broader view of the staff.

[00:51:52] Speaker 06:
Can I just one question on that, whether it's merits or mootness, why would be read sufficient to mean necessary?

[00:52:00] Speaker 02:
Concededly, generally sufficient does not mean necessary, but here we think it does.

[00:52:05] Speaker 02:
And that brings me to my second point.

[00:52:07] Speaker 02:
The rule in the act that Congress has promulgated here is the operative element.

[00:52:12] Speaker 02:
It's the linchpin of Congress's determination that the authorization is in full compliance.

[00:52:20] Speaker 02:
So it must remain.

[00:52:21] Speaker 02:
If the rule were to be remanded and the agency were to be tasked with preparing some different rule, there would be no way to say whether continued authorization of the fisheries is still in compliance with those two relevant statutes.

[00:52:37] Speaker 02:
And although I realize that the first statement is only light support, Angus King said when he introduced to this that the provision was a compromise negotiated between various people interested in this issue in the body that leaves in place all of those protective measures.

[00:52:53] Speaker 02:
And when he said protective measures, he was referring to the rule.

[00:52:58] Speaker 02:
So whether it's couched in mootness or a direct result, the point is that the act has overtaken any challenge the plaintiffs might have asserted as to the merits of the

[00:53:09] Speaker 07:
Um, another we just take ask you to clarify something.

[00:53:17] Speaker 07:
I'm not sure I got that.

[00:53:18] Speaker 07:
You're saying once the statute passed, deeming the rule sufficient, it precluded, it precludes a challenge on the merits because that if successful would leave no one, no one would know whether they're in compliance

[00:53:35] Speaker 07:
we were saying?

[00:53:36] Speaker 02:
The argument is, yes, the statute does say sufficient.

[00:53:41] Speaker 02:
But if the rule were to be remanded for promulgation of something less stringent, perhaps, we would be essentially left without the legislation.

[00:53:52] Speaker 02:
There's no way to know whether the authorization would be in full compliance if the rule has been taken out of the matter.

[00:53:59] Speaker 02:
And that's why I say that the rule is the linchpin or the keystone

[00:54:04] Speaker 07:
Okay, well, there wouldn't be a way to know except that, except through litigation.

[00:54:12] Speaker 07:
That can be resolved.

[00:54:14] Speaker 07:
If the remand results in a certain portion of the rule being invalidated.

[00:54:19] Speaker 07:
So the question is, well, is it still as efficient?

[00:54:23] Speaker 07:
The agency government can take a view on that and say, well, it's not anymore.

[00:54:32] Speaker 07:
Um, and

[00:54:33] Speaker 07:
and precipitate a lawsuit.

[00:54:37] Speaker 02:
That is possible.

[00:54:38] Speaker 02:
We would certainly be back in court.

[00:54:41] Speaker 02:
But I think my broader point is that if we were litigating about whether a new rule complied with the ESA or the MMPA, it would essentially be setting aside what Congress has already said here.

[00:54:52] Speaker 02:
we would be back to square one looking at compliance with the ESA and the NMPA.

[00:54:58] Speaker 02:
And when Congress passed this statute, it put a pause in place for the next six years and instructed the agency with a significant amount of funding to spend its resources working with their parties, states, regulated parties to generate new technologies that would be incorporated into a new role in 2018.

[00:55:18] Speaker 07:
So does it follow from what you're saying then that

[00:55:22] Speaker 07:
If the court were to say, we're not going to vacate the rule, it's been deemed sufficient, but we're going to, um, entertain the, um, the appellants claim that parts of the rule are arbitrary in their formation.

[00:55:41] Speaker 07:
Basically they're seeking a declaration to that fact, um, that that would also be precluded.

[00:55:49] Speaker 02:
I think it would be included by the language of the act and the purpose of the statute, which was to put a pause here.

[00:55:59] Speaker 02:
But to pin it slightly, if this argument is that the rule is invalid because it relies on the biological opinion, they're foreclosed again because, as we've explained,

[00:56:10] Speaker 02:
The authorization of the fisheries after the rule is in full compliance with the Endangered Species Act.

[00:56:16] Speaker 02:
The relevant analysis for compliance with the Endangered Species Act is the biological opinion.

[00:56:21] Speaker 02:
And so we disagree with plaintiff's assertion that the rule relies on the biop.

[00:56:28] Speaker 02:
That's factually incorrect.

[00:56:30] Speaker 02:
But if we were to accept that premise, it would still fail under the language of the statute.

[00:56:35] Speaker 07:
Let's assume for the moment that the Appropriations Act

[00:56:40] Speaker 07:
makes the rule impregnable.

[00:56:44] Speaker 07:
And the appellants tell us, well, that's beside the point.

[00:56:50] Speaker 07:
There's an ongoing process which is burdening us based on the biological opinion.

[00:56:58] Speaker 02:
I am struggling to think what that might possibly be.

[00:57:03] Speaker 02:
Not to be facetious, but they can identify no regulatory actions coming from the biological opinion.

[00:57:08] Speaker 07:
Well, they talked about being engaged in mandatory meetings about achieving the necessary take reduction.

[00:57:17] Speaker 07:
And meanwhile, suffering under the uncertainty about whether what their members are going to do about investment in terms of new equipment.

[00:57:27] Speaker 02:
Yes, but those actions, the meetings come from the process that is associated with promulgation of a new rule.

[00:57:37] Speaker 02:
It's not supposed to be burdensome.

[00:57:38] Speaker 02:
It enables them to provide their views to the regulating agency.

[00:57:42] Speaker 02:
And that process comes not from the biological opinion.

[00:57:45] Speaker 02:
It comes from the Marine Mammal Protection Act.

[00:57:48] Speaker 02:
But for present purposes, this no jeopardy biological opinion has no regulatory effect.

[00:57:54] Speaker 02:
It has no harm on the plaintiffs.

[00:57:57] Speaker 02:
And they've challenged in this case because they've asserted that the conservation framework somehow sprung from the biological opinion.

[00:58:05] Speaker 02:
But as we've explained in our declaration, the conservation framework or the phases that remain, phases three and four, the phases that affect the relevant fisheries are not being pursued.

[00:58:17] Speaker 02:
We make this very clear in the declarations.

[00:58:20] Speaker 02:
Service says in light of it.

[00:58:22] Speaker 06:
Phases three and four.

[00:58:23] Speaker 02:
Correct.

[00:58:24] Speaker 06:
But the biological opinion is the entire basis for phase one.

[00:58:29] Speaker 06:
Biological opinion said here are the four things we need to do in order to attain compliance.

[00:58:38] Speaker 02:
I respectfully disagree.

[00:58:40] Speaker 02:
The phase one rule was promulgated, as we've explained in our brief on pages 10 through 16, it's promulgated under the MMPA, Marine Mammal Protection Act process.

[00:58:50] Speaker 02:
And that process was ongoing, it was initiated in 2017.

[00:58:54] Speaker 02:
And it's a separate regulatory process.

[00:58:57] Speaker 02:
So it had its own Endangered Species Act consultation.

[00:59:01] Speaker 02:
That's at pages A378 through 79 of the biop, or I'm sorry, of the record.

[00:59:07] Speaker 02:
So this process was ongoing.

[00:59:10] Speaker 02:
It's entirely separate from the consultation that was associated or the consultation undertaken to evaluate whether the continued authorization of the fisheries

[00:59:20] Speaker 02:
would likely jeopardize the species and so yes biological opinion does reference phase one of the conservation framework but that's the take reduction plan amendment rule it was already in place or the production of that rule was in place it's not relying on the biological opinion

[00:59:42] Speaker 02:
The biological opinion might be dependent on phase one in the sense that they analyze the fisheries as they would proceed under that rule.

[00:59:52] Speaker 02:
But phase one is not dependent on the biological opinion.

[00:59:57] Speaker 06:
Your defense of the rule in your briefing seems to rest entirely on biological opinion and not on some independent ground through MMPA process.

[01:00:11] Speaker 02:
We haven't advanced a specific argument in our rule, or in our briefing as to the rule, because we didn't see that they had made a separate argument specific to their rule.

[01:00:21] Speaker 06:
A challenge to the rule?

[01:00:23] Speaker 02:
Correct.

[01:00:24] Speaker 06:
Count three of their complaint.

[01:00:28] Speaker 06:
The challenge is phase one, based on perceived flaws in the biological opinion.

[01:00:36] Speaker 06:
And Judge Boesberg's opinion saw it exactly that way.

[01:00:39] Speaker 06:
He said the biological opinion is fine and therefore the phase one rule that flows from the biological opinion is fine.

[01:00:47] Speaker 06:
That's the way the issue was teed up.

[01:00:49] Speaker 02:
I confess that our brief could have been more specific in our explanation of the separate regulatory processes for these two actions.

[01:00:59] Speaker 02:
But again, pages 10 through 16 of our brief, we explained that they are indeed separate.

[01:01:05] Speaker 02:
And I'm happy to proceed to our discussions about the validity of the buy-out.

[01:01:13] Speaker 02:
But again, the validity of the buy-out doesn't affect the validity of the rule.

[01:01:22] Speaker 03:
Miss Engels, can you give us your best

[01:01:30] Speaker 03:
statutory argument for why the rule and the biological opinion are not contrary to law, answering the contrary to law argument that appellants have made here.

[01:01:46] Speaker 03:
Because most of the briefing really focuses on arbitrary and capricious in defending the actions as reasonable.

[01:01:55] Speaker 02:
Correct.

[01:01:59] Speaker 02:
The contrary to law argument that plaintiffs have presented the idea that the biological opinion is somehow inconsistent with section seven completely attacks the straw man, which is really not what the agency produced.

[01:02:14] Speaker 02:
I'm not able to defend whether it would have been lawful for the agency to set aside the best available science

[01:02:21] Speaker 02:
and proceed based on a policy because that's not what the agency did here.

[01:02:25] Speaker 02:
The relevant language in Section 7 is the best available science, and the standard means that the agency needs to evaluate the science and data before it, can't ignore superior data, and must explain its approach, and that's exactly what the agency did here.

[01:02:42] Speaker 03:
What about giving the benefit of the doubt to the species here?

[01:02:48] Speaker 03:
I mean, how is that consistent with the statute?

[01:02:51] Speaker 03:
And also, how is that consistent with the 2019 rule that specifically takes that off of the table?

[01:03:04] Speaker 02:
So I'd like to...

[01:03:06] Speaker 02:
Well, to answer the question about consistency with the statute, the statute was promulgated to conserve threatened species and it's established a national policy that agencies should seek to conserve listed species.

[01:03:19] Speaker 02:
But again, I'm not defending any agency decision to adopt a policy that

[01:03:26] Speaker 02:
forced it to ignore the best available science in favor of some sort of freestanding presumption because that's not what the agency did here.

[01:03:34] Speaker 02:
They just have selected a number of selective quotes from the record where the agency did say, when we're dealing with data uncertainties, we used metrics representing the worst case scenario.

[01:03:46] Speaker 02:
But for example, in that very same context, I'm here speaking about pages A926 through 27 of the record.

[01:03:54] Speaker 02:
The agencies analysis could stand on its own without any reference to worst case scenario or benefit of the doubt.

[01:04:00] Speaker 02:
The agency said in that context that when it was just when is preparing the population projection model, when it was dealing with data uncertainties, for example,

[01:04:12] Speaker 02:
uncertainties in the calving rates that might be in the future, or unquantified benefits from conservation measures, it used the actual data.

[01:04:22] Speaker 02:
And to bring that down to more granularity, the agency explained that it used calving rates from 2010 to 2019 because that was the actual data it had.

[01:04:33] Speaker 02:
And it explained that might actually represent the worst case scenario because calving rates are expected to improve with the framework in place.

[01:04:41] Speaker 02:
Likewise, the agency didn't use unquantified benefits from conservation measures in Canada because they couldn't be quantified.

[01:04:48] Speaker 06:
But the agency said when the data produce a range, we will pick, when in selecting within the range, we pick the best for the species.

[01:05:02] Speaker 06:
And that seems, I mean, that's not a tiebreaker rule.

[01:05:08] Speaker 06:
And that's not a thumb scale, that's a whole arm scale.

[01:05:13] Speaker 02:
There were some cases where the agency when faced with uncertainty or range of particular values or different analytical approaches when those can all be applied to the same data set.

[01:05:23] Speaker 02:
Reasonably, yes, the agency proceeded with caution.

[01:05:26] Speaker 02:
That is entirely consistent with the Endangered Species Act.

[01:05:29] Speaker 03:
Well, Ms.

[01:05:31] Speaker 03:
Engels, you're avoiding my question about how that's consistent with the 2019 regulation that my understanding is still on the books, right?

[01:05:40] Speaker 03:
So there's a 2019 regulation that says in this process that agencies are not to use the worst case scenario or make conservative modeling assumptions.

[01:05:50] Speaker 03:
it specifically rejects the benefit of the doubt theory, and it finds irrelevant the conference report that is relied on in your brief.

[01:06:01] Speaker 03:
So how is all of that consistent with the regulation that is still on the books from just a few years ago?

[01:06:10] Speaker 02:
If Your Honor is referring to 84 Fedreg pages 44, 976 and 45,000, those are comments that the agency provided or responses to comments that the agency provided when it promulgated that regulation.

[01:06:24] Speaker 02:
But ultimately it said,

[01:06:27] Speaker 02:
The agency, yes, it's the Endangered Species Act.

[01:06:30] Speaker 02:
We are concerned about listed species, but the agency is not under an obligation to adopt the worst case scenario.

[01:06:37] Speaker 02:
It's obligated to apply the best available science, and it explained that could be data, agency knowledge, expertise, and it confirmed that the agency needs to consider actions and effects that are reasonably certain to occur.

[01:06:51] Speaker 02:
But that's exactly what the agency did here.

[01:06:54] Speaker 02:
It was relying on data, and it didn't apply that approach in every instance.

[01:06:59] Speaker 02:
So, for example, on page 817 of the appendix, that's where the agency explained how it was going to allocate

[01:07:10] Speaker 02:
deaths that couldn't clearly be attributed to either entanglement or boat strikes.

[01:07:15] Speaker 02:
And it said that based on the observed data, it would allocate 77% of the mortalities of unknown cause to entanglement, because in that instance, the observed data was representative.

[01:07:26] Speaker 02:
But there was a study from 2021, the PACE study referenced on that same page, that said there would have been a reason to allocate 87%

[01:07:36] Speaker 02:
of these unknown mortalities to entanglement.

[01:07:41] Speaker 02:
And the agency didn't proceed with that figure because it understood that the data it had that supported 77% was the best available data.

[01:07:50] Speaker 02:
So the best reading of this record is that the agency did apply the best available data.

[01:07:56] Speaker 02:
It did not displace that data with some policy or presumption.

[01:08:00] Speaker 02:
Did it reference the worst case scenario or be applying a conservative approach?

[01:08:05] Speaker 02:
Yes.

[01:08:06] Speaker 02:
But if those parts were struck from the record, the rest of the analysis would stand on its own.

[01:08:11] Speaker 02:
And I know here that the caution is consistent with the Endangered Species Act and is also reflective of the fact that the agency was assessing possible jeopardy to a species with only fewer than 350 individuals remaining.

[01:08:26] Speaker 02:
In any case where it makes sense to proceed with caution or apply a conservative approach, it made sense to do so here.

[01:08:33] Speaker 02:
But that analysis, the agency's data analysis was not driven by the status of the species.

[01:08:41] Speaker 02:
It was driven by the data and the science, and that's supported by the work.

[01:08:45] Speaker 07:
So when it says it's 506, the assumptions may be considered pessimistic, but we need to give the benefit of the doubt to the species.

[01:08:55] Speaker 07:
We're supposed to disregard that?

[01:08:57] Speaker 02:
I think in that context, the agency was talking about population projections and explaining that all of the analysis that is conducted along the way might yield a result that looked like it would be

[01:09:16] Speaker 02:
send the whale on a sharper trajectory than would actually possibly play out in reality.

[01:09:24] Speaker 06:
You said that the agency doesn't really believe its own projections.

[01:09:30] Speaker 06:
We utilize metrics representing the worst case scenario, consequently model outputs very likely overestimate the likelihood of a declining population.

[01:09:40] Speaker 06:
Yes.

[01:09:41] Speaker 06:
That sounds driven much more by the presumption

[01:09:47] Speaker 06:
than by the data?

[01:09:50] Speaker 02:
Respectfully, the better way to view that, we submit, is that when the agency was looking at ranges of values for the analysis and picked from those the figures that were more conservative but still supported by the data, the aggregation resulted in a more pessimistic population trajectory

[01:10:09] Speaker 02:
but ultimately the agency reached a no jeopardy conclusion.

[01:10:13] Speaker 02:
It wasn't producing the population trajectory figures because they had a specific regulatory effect or because it was looking for precision in the next 50 years.

[01:10:21] Speaker 02:
It was looking only to determine whether continued authorization of the fisheries would jeopardize the whale and it determined based on its analysis that it would not.

[01:10:31] Speaker 06:
If the agency were trying to measure something relevant to this and they get

[01:10:37] Speaker 06:
probability distribution, some variable.

[01:10:40] Speaker 06:
Did they say, I'm not gonna pick the height of the bell curve, we're gonna go two standard deviations to the left because that point is more protective of the species?

[01:10:55] Speaker 02:
I think it would have to be a fact-specific analysis.

[01:10:59] Speaker 02:
I mean, I understand that we're talking about statistics.

[01:11:03] Speaker 02:
And if the best data shows the center line is the right approach, then that would be what the agency has to do.

[01:11:09] Speaker 06:
It has to justify its determination and can't say... They have to take their best shot at coming up with the best answer.

[01:11:18] Speaker 06:
Can't just say, oh, there's this broad range, so we're going to pick the endpoint rather than...

[01:11:26] Speaker 06:
something in the heartland.

[01:11:27] Speaker 02:
It couldn't do it in every case.

[01:11:29] Speaker 02:
It has to be justified based on the record.

[01:11:31] Speaker 02:
But again, that is what the agency did here.

[01:11:33] Speaker 02:
And there are places in the record where the agency referred to using a worst case scenario.

[01:11:39] Speaker 02:
But in all of the instances, the agency explained its approach and why it was based on the data.

[01:11:45] Speaker 02:
Ultimately, the best available science standard

[01:11:47] Speaker 02:
means that the agency can't base its decision on speculation.

[01:11:51] Speaker 02:
That's not what the agency did here.

[01:11:52] Speaker 02:
And plaintiffs identify no better information that the agency overlooked.

[01:11:57] Speaker 02:
And so the story about a broad policy is really an attack on the straw man that doesn't have support in the record.

[01:12:05] Speaker 07:
The agency's charge is to figure out what's likely.

[01:12:08] Speaker 07:
Is that right?

[01:12:08] Speaker 07:
The word likely is key here?

[01:12:10] Speaker 07:
It is.

[01:12:11] Speaker 07:
So that makes it difficult for me to understand some things that appear in the brief.

[01:12:18] Speaker 07:
example, along the lines you've been discussing, the service evaluated a worst case scenario among the most likely scenarios.

[01:12:28] Speaker 07:
What does that mean?

[01:12:29] Speaker 02:
Well, our point is simply that a true worst case scenario would have allocated all entanglements to U.S.

[01:12:36] Speaker 02:
fisheries and said that it would happen in great numbers, great, far into the future.

[01:12:42] Speaker 02:
That would be a true worst case scenario.

[01:12:44] Speaker 02:
What the agency did here was

[01:12:47] Speaker 02:
evaluate the available data, assess its confidence in that data, and say, when there are a number of equally likely or possible outcomes, we will take the one that is more conservative or more cautious.

[01:13:00] Speaker 02:
Because our task is to ensure that jeopardy is unlikely, and selecting an outcome that might understate the effects would not be consistent with that mandate.

[01:13:12] Speaker 07:
Likely just means more, 51%, right?

[01:13:14] Speaker 07:
More than 50%.

[01:13:16] Speaker 00:
Yes.

[01:13:17] Speaker 07:
So if you have worst case scenario, that is truly worst case scenario where it's extremely unlike that they will species will survive.

[01:13:34] Speaker 07:
And several other intermediate steps.

[01:13:38] Speaker 07:
You're saying, well, that's really, that's just too one.

[01:13:43] Speaker 07:
But the one that says, well, there's a 60% chance that the species will survive, and another one that says there's a 40% that it will survive, you're going to take the 40%.

[01:14:00] Speaker 02:
It would depend on whether that decision was supported by the data.

[01:14:05] Speaker 02:
But, for example, here, you know, I turned back to the page 817 where we discussed the difference between entanglements and boat strikes.

[01:14:14] Speaker 07:
Give me the page number again.

[01:14:15] Speaker 02:
It was page 817 of the record.

[01:14:18] Speaker 07:
817.

[01:14:19] Speaker 02:
And so, in that instance, the agency had one figure that said, based on a 2021 study, that it could allocate 87 percent of the unknown cause deaths to entanglements.

[01:14:35] Speaker 02:
But it also had data that showed that 77 percent of the unknown causes could be attributed to entanglements.

[01:14:44] Speaker 02:
And in that case, because it determined that the 77% figure had more support in the record and was more reliable, it proceeded with that figure.

[01:14:53] Speaker 02:
And so it's not true that in every case it said, we will pick the most conservative figure.

[01:14:59] Speaker 07:
But that may well be the problem arises if in any case it did.

[01:15:07] Speaker 02:
I haven't found a place in the record where they did that and the appellants haven't either.

[01:15:12] Speaker 07:
The 50-50 split.

[01:15:14] Speaker 07:
on I guess it's mortalities between Canada and the U.S.

[01:15:21] Speaker 07:
would seem to be an example.

[01:15:23] Speaker 02:
Well, the agency there explained that

[01:15:26] Speaker 02:
Although there were more observed entanglements that could be attributed to Canada, most observed data is not representative.

[01:15:35] Speaker 02:
Again, the whales move, lots of gear is unmarked, and so the fact that some have been found in Canada is not representative of the larger circumstance.

[01:15:46] Speaker 02:
The surveys that are being conducted in Canada are more carcass detection studies.

[01:15:51] Speaker 02:
They support a different mission, and the agency said,

[01:15:55] Speaker 02:
more, the whales are spending more time in the United States.

[01:15:58] Speaker 02:
Yes, they're spending more time, some population is spending more time in Canada, but there are considerations on both sides of the border.

[01:16:08] Speaker 07:
When it said that, that to some, whatever it is, to some degree, the whales are spending time in the United States, did that distinguish it all between the southeast ocean off the United States or versus the lobster, the fishery area?

[01:16:25] Speaker 02:
I'm not aware of a figure.

[01:16:26] Speaker 02:
I can't see.

[01:16:27] Speaker 07:
So what's the relevance of when they're in the southern waters?

[01:16:30] Speaker 07:
I don't see the relevance of their having been in the United States.

[01:16:35] Speaker 02:
I take your point, Your Honor.

[01:16:36] Speaker 02:
I think the way I respond is by saying that, yes, although a population is moving into Canada, it's only a small concentration of the population, about one third.

[01:16:47] Speaker 02:
And that concentration still spends about half of its time in the US waters.

[01:16:52] Speaker 02:
That's on day 480.

[01:16:55] Speaker 02:
This was a difficult analysis.

[01:16:56] Speaker 02:
Perhaps it would have been possible to be more precise in these figures, but this is difficult.

[01:17:10] Speaker 02:
The agency is working with very limited data.

[01:17:13] Speaker 02:
population is limited, and the agency submitted its analysis to independent experts who did express disagreement on the best approach.

[01:17:24] Speaker 07:
Well, I'm not sure that limited data helps here.

[01:17:26] Speaker 07:
Could the agency lawfully have said, or not arbitrarily have said, well, obviously some of the time is spent outside of the fishery areas, indeed, maybe half the year, but we're not sure about how much, so we're just gonna disregard that, not try to reject that.

[01:17:44] Speaker 02:
I'm sorry, Your Honor, could you repeat the question?

[01:17:46] Speaker 07:
I'm saying I don't understand why the absence of data is the obstacle here to making some adjustment for the fact that the whales who spend half their time in the United States do not spend all of that time in the fishery or even in New England.

[01:18:03] Speaker 02:
I think with these analyses, they could always be more precise, but the question is whether it was reasonable

[01:18:11] Speaker 02:
And when the agency conferred with independent experts, they expressed disagreement on the best approach, but ultimately determined, and this is page A, 1992 of the appendix, that the 50-50 split was likely still a conservative estimate of residency in US waters, and there was no data on which to base a different level of apportionment.

[01:18:33] Speaker 07:
Is that the point on which the peer review committee was divided?

[01:18:38] Speaker 02:
Yes, they were divided, but the ultimate conclusion, the agreement was that there was no better way to draw the line.

[01:18:45] Speaker 02:
And so the question for present purposes is not whether the agency could have developed a more precise analysis or whether it might not completely accurately reflect on the ground or in the water circumstances.

[01:19:00] Speaker 02:
The question is whether the agency reasonably applied and considered the data before it.

[01:19:06] Speaker 02:
And it did that.

[01:19:08] Speaker 02:
And therefore, it applied the best available science.

[01:19:15] Speaker 06:
Do you have anything to say on Mr. Cullman's second point?

[01:19:19] Speaker 02:
I'm happy to address it briefly.

[01:19:21] Speaker 02:
I think my primary point here is that the regulatory authority to proceed with the conservation framework and the regulations therein

[01:19:29] Speaker 02:
comes from the Marine Mammal Protection Act.

[01:19:31] Speaker 02:
The idea that moving forward to a jeopardy determination would somehow have opened up a variety of doors that would have helped the fishery is not accurate.

[01:19:42] Speaker 02:
If the agency had reached a jeopardy determination, then the fishery would have had to have shut down.

[01:19:46] Speaker 02:
And although the committee procedure does exist, it grants exceptions only when the applicant can show that the action cannot be altered or modified to avoid violating Section A2.

[01:19:58] Speaker 02:
And the committee concludes that no reasonable and prudent alternatives are available.

[01:20:03] Speaker 02:
And so here the fact that the agency developed a plan to avoid jeopardy, to keep this important industry open and to authorize the fisheries is a benefit.

[01:20:13] Speaker 02:
It's not something that prompted the agency to avoid or sidestep any sort of necessary analysis or benefits for the industry.

[01:20:22] Speaker 07:
Let me ask you about a statement at 45 of your brief.

[01:20:27] Speaker 07:
The relevant text, this is of 782.

[01:20:30] Speaker 07:
The relevant text says nothing about how an agency must handle uncertainties in the data.

[01:20:37] Speaker 07:
However, nor does it limit the sorts of conclusions agencies may draw when they face uncertainty.

[01:20:44] Speaker 07:
The 506 in the appendix opinion, it says, as the assumptions may be considered pessimistic, but given congressional guidance on implementation of the ESA,

[01:20:57] Speaker 07:
we need to give the benefit of the doubt to the species.

[01:21:00] Speaker 07:
So, and that elsewhere, that's an eight 50, it's described, the agency describes that guidance as a directive.

[01:21:09] Speaker 07:
So the agency seems to be proceeding on the belief that it is compelled to do what it did.

[01:21:15] Speaker 07:
Well, are you, what you're saying it didn't do, give the benefit of the doubt, although various places, it says that, but it certainly seems to say, to think,

[01:21:26] Speaker 07:
that is compelled by the statute at one point and, as another, that the statute doesn't give any binding view on this.

[01:21:39] Speaker 02:
Correct.

[01:21:39] Speaker 02:
And I realize that there's some tension between saying, look at what the agency said here and look at what the agency did here.

[01:21:46] Speaker 02:
But when we're talking about using the best available data, the record shows that the agency did that.

[01:21:51] Speaker 02:
And our brief explains that.

[01:21:55] Speaker 07:
You made that point.

[01:22:00] Speaker 02:
I see the tension.

[01:22:02] Speaker 02:
Ultimately, the idea that an agency might proceed conservatively in the face of unclear data when it's

[01:22:10] Speaker 02:
producing an analysis under the Endangered Species Act is consistent with the Act.

[01:22:14] Speaker 07:
We would never agree that that goal should trump any requirement to apply the best available data, and that's what the... By the way, if the biological opinion were set aside, wouldn't the previous biological opinion just simply take in and remain the reigning document?

[01:22:39] Speaker 02:
I can only speculate, Your Honor, but because these are scientific analyses, I don't think the prior one could spring back into force.

[01:22:47] Speaker 02:
It would need to be updated to ensure that it reflects the best available data.

[01:22:52] Speaker 02:
This brings me to one quick point I'll make, is that if the court is inclined to vacate, no party has requested vacater of the biop to date, and we'd like an opportunity to submit briefing.

[01:23:02] Speaker 02:
Also, keeping the biop

[01:23:05] Speaker 02:
The opinion in place is important because it's something that the agency looks to when it grants permits to the fishery.

[01:23:12] Speaker 02:
And so setting aside this no jeopardy opinion, which has no harms currently, will produce harms both for the agency and for the regulator.

[01:23:22] Speaker 06:
I'm sorry, you said the opinion is something you look to in doing what?

[01:23:28] Speaker 06:
In granting permits for the fishery.

[01:23:30] Speaker 06:
Which is ongoing.

[01:23:31] Speaker 06:
Correct.

[01:23:32] Speaker 06:
That sort of confirms Mr. Clement's point that the biop has all of these other consequences besides arguably supporting phase one.

[01:23:43] Speaker 02:
Well, the argument that I understand our opponents to make is that there are regulatory effects and harms that flow from the biological opinion.

[01:23:52] Speaker 02:
Our point is that the opinion exists as an analysis of the fisheries, and in some limited instances, it's used to ensure that the fisheries can continue to operate.

[01:24:02] Speaker 07:
And I'd be happy to submit additional briefing if the previous biological opinion kicked in until such time as the current one to be updated.

[01:24:10] Speaker 07:
Correct.

[01:24:11] Speaker 07:
So that one found that there was no jeopardy.

[01:24:17] Speaker 07:
Right.

[01:24:19] Speaker 07:
right whales authorized lobster fishery under section seven.

[01:24:23] Speaker 07:
So that would just be, if that's the rel, if that would legally kick in, that would be the status quo.

[01:24:30] Speaker 07:
And so since time is new, now a new and improved thing.

[01:24:35] Speaker 02:
I don't mean to use this hypothetical.

[01:24:38] Speaker 02:
I'm simply, I don't have enough information to say whether it would in fact kick in this time.

[01:24:44] Speaker 06:
Just around anything else?

[01:24:48] Speaker 01:
Thank you.

[01:24:51] Speaker 01:
Thank you very much.

[01:25:05] Speaker 00:
Good morning.

[01:25:06] Speaker 06:
Is it Monsal?

[01:25:07] Speaker 05:
Monsal.

[01:25:08] Speaker 06:
Monsal.

[01:25:09] Speaker 06:
Welcome.

[01:25:09] Speaker 05:
Good morning.

[01:25:10] Speaker 05:
May it please the court, Kristen Monsal, on behalf of intervener at Helles.

[01:25:13] Speaker 05:
I'd just like to briefly address one issue, and that is why the court doesn't have jurisdiction over appellant's second claim challenging the conservation framework, as they haven't and can't shown they're injured by it, and thus lack standing a challenge.

[01:25:29] Speaker 05:
And that's because despite recognizing the critically endangered status of the North Atlantic right whale and the threat that the lobster fishery poses to the species, the agency didn't actually require any changes to the fishery in the framework itself.

[01:25:44] Speaker 05:
It has no current impact on the fishery.

[01:25:47] Speaker 05:
It simply lays out risk reduction targets for one to two future rule makings for the fishery through 2030.

[01:25:55] Speaker 05:
and doesn't specify any particular measures.

[01:25:58] Speaker 05:
And in fact, the framework says expressly and repeatedly that there will be an evaluation period before each new phase to examine new information, that the targets are subject to revision as new information becomes available based on those two evaluation phases and that further action

[01:26:17] Speaker 05:
may not be needed and I would direct the court's attention specifically to a 605 and a 1078 in the record where the agency says it will evaluate no information and quote evaluate whether further action in the federal fisheries is needed and if so at what level.

[01:26:36] Speaker 05:
So the claims you're hearing about how the framework imposes draconian measures in the briefing and the arguments today are just simply impossible to square with the framework

[01:26:47] Speaker 06:
Do you agree that there is a live controversy with respect to the final rule?

[01:26:54] Speaker 05:
We haven't challenged plaintiffs or appellant standing with respect to claim.

[01:27:01] Speaker 06:
And in so far as that challenge is live, we can review aspects of the biological opinion to the extent we think they support or don't support the final regulation.

[01:27:15] Speaker 05:
I think that's that.

[01:27:17] Speaker 06:
Okay, thank you.

[01:27:17] Speaker 05:
And so they don't have standing based on phase one of the, excuse me, they don't have standing to challenge the framework based on phase one.

[01:27:29] Speaker 05:
And that's for a couple of different reasons.

[01:27:31] Speaker 06:
One, as you've heard- That's just the merits argument that the rule can be justified.

[01:27:38] Speaker 06:
through the Marine Mammal Statute as opposed to the ESA?

[01:27:41] Speaker 05:
Right, the record demonstrates that the agency developed that rule under the Marine Mammal Protection Act to comply with separate statutory requirements.

[01:27:51] Speaker 06:
Which is a contested question on the merits of their challenge.

[01:27:56] Speaker 05:
Correct, yes.

[01:27:57] Speaker 05:
And I think the framework itself at 1072 to 73 explains how that phase one rule was developed apart from the framework and elsewhere in the record

[01:28:08] Speaker 05:
For example, 329, it explains that it was a separate process.

[01:28:14] Speaker 05:
And moreover, I think that there are arguments against the framework aren't based on current harm from the rule itself, but speculation about future harms, about what might happen in the event the agency does issue these future rules.

[01:28:29] Speaker 05:
And the rule has 98 percent.

[01:28:33] Speaker 06:
rule has tended $20 million of compliance costs.

[01:28:36] Speaker 06:
That's going to give them standing.

[01:28:38] Speaker 05:
Right.

[01:28:39] Speaker 05:
And we haven't challenged their standing to challenge the biological opinion and the analysis leading to the final rule, only their challenge with respect to claim two.

[01:28:51] Speaker 05:
And that's because the framework's targets for future rule makings have no current regulations.

[01:29:03] Speaker 05:
explicitly subject to revision based on a new information.

[01:29:07] Speaker 05:
And there was also a reference of the requirement to gather data or participate in team meetings, but those are requirements that are

[01:29:19] Speaker 05:
required under Section 118 and other provisions of the Marine Mammal Protection Act, not the framework itself.

[01:29:26] Speaker 05:
And furthermore, in the recent Appropriations Act, the Congress mandated that the agency continue to collect more data and file written reports with Congress once a year to show its progress towards developing this new final goal in 2020.

[01:29:47] Speaker 05:
their claims from injury for the framework.

[01:29:51] Speaker 04:
Um, or at this point are purely conjectural.

[01:29:54] Speaker 04:
We asked that the court reject their second claim on that basis.

[01:29:59] Speaker 06:
Thank you.

[01:30:01] Speaker 06:
Thank you.

[01:30:07] Speaker 06:
We gave you a pretty good workout the first time you want to keep going.

[01:30:11] Speaker 08:
I would like that your honor.

[01:30:12] Speaker 08:
Um, you know, and I'll try to be brief.

[01:30:15] Speaker 08:
Um, and,

[01:30:16] Speaker 08:
unless you want to take a recess first, but I'll go.

[01:30:22] Speaker 06:
Why don't you sit down for a minute.

[01:30:26] Speaker 06:
Okay.

[01:30:27] Speaker 06:
Mr. Cullman.

[01:30:29] Speaker 08:
I just want to make a few points, quick points in rebuttal.

[01:30:32] Speaker 08:
I mean, first of all, I think it's worth underscoring that the argument that the final rule did not rely on the buyout is not just merits argument.

[01:30:42] Speaker 08:
It is a forfeited merits argument.

[01:30:44] Speaker 08:
And this whole case proceeded on the assumption that all of this was intertwined.

[01:30:49] Speaker 08:
That's a very logical assumption.

[01:30:51] Speaker 08:
The conservation framework that's evaluated in the biop includes the final rule.

[01:30:56] Speaker 08:
The final rule was issued after the biop, whether or not it expressly refers to it.

[01:31:01] Speaker 08:
It uses the same data and the same flawed data, which is why Judge Boasberg and all the parties, until the Appropriations Act and the government had an incentive to try to disentangle them, proceeded on the assumption that

[01:31:13] Speaker 08:
was all one in the same.

[01:31:14] Speaker 08:
So that argument is merits argument in fourth.

[01:31:17] Speaker 08:
One, just at the risk of being pedantic to point out a Freudian slip on the government, when they came up here and talked about the statutory language, their statutory shorthand was the best available science.

[01:31:28] Speaker 08:
But the statutory language is the best available scientific and commercial data.

[01:31:38] Speaker 08:
And the Supreme Court unanimously invented against Speer

[01:31:42] Speaker 08:
underscored that that language was added to this particular provision after TBA Hill to impose a modicum of cost benefit analysis into the system.

[01:31:51] Speaker 08:
So I think, although maybe it's the Freudian slip, I think it is an important distinction.

[01:31:55] Speaker 08:
And lastly, just to underscore the arm on the scale point, and just to go back to A814 and

[01:32:04] Speaker 08:
that chart and the reasoning of the agency.

[01:32:07] Speaker 08:
Just to give you another illustration of this was not, as you said, a thumb, but an arm on the scale.

[01:32:12] Speaker 08:
If you look at the data in the chart, and you keep in mind that the reason we're here is because of the unusual mortality event in 2017, the best available scientific data, if you ask me, is that in 2016, 2017, and 2018, every single documented entanglement was a Canadian one.

[01:32:33] Speaker 08:
It wasn't eighty to twenty percent for those three years.

[01:32:36] Speaker 08:
It was a hundred percent to zero.

[01:32:38] Speaker 08:
And yet, why was that data completely ignored?

[01:32:42] Speaker 08:
It was because using a different data set provides the benefit of the doubt of the species and a more conservative estimate of right.

[01:32:50] Speaker 08:
Well, entangled.

[01:32:51] Speaker 08:
So right there, it's not just.

[01:32:53] Speaker 08:
breaking the tie, it's completely disregarding a whole set of data based on that presumption, which infected the entire analysis.

[01:33:00] Speaker 08:
Thank you.

[01:33:01] Speaker 06:
Thank you, counsel.

[01:33:02] Speaker 06:
The case is submitted.