[00:00:00] Speaker 02:
Case number 23-5285, Center for Biological Diversity Appellants versus United States Fish and Wildlife Services et al.

[00:00:10] Speaker 02:
Ms.

[00:00:10] Speaker 02:
Ackland for the Appellants, Mr. Anderson for the Appellees.

[00:00:15] Speaker 01:
Good morning, Council.

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

[00:00:17] Speaker 01:
Ackland, please proceed when you're ready.

[00:00:21] Speaker 07:
Good morning, Your Honors.

[00:00:22] Speaker 07:
May it please the Court.

[00:00:23] Speaker 07:
My name is Christina Ackland on behalf of Appellant Center for Biological Diversity.

[00:00:28] Speaker 07:
Before I get to the merits of this case, I'd like to first address the threshold questions of standing.

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In regards to this court's specific questions on whether or not center members have to allege plans to observe the beetle in the southern plains analysis area in order to establish standing here, the government concedes that the answer to that question is no.

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As our brief explains, Mr. Bugbee's concrete plans to observe the beetle in the New England analysis area is sufficient.

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And that's because under this court's case law, as long as he can allege an injury from the downlisting decision, the center can raise any legal challenge that would ultimately result in vacature of the decision and redress his injuries, which include the ones presented here.

[00:01:22] Speaker 06:
Your brief.

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Opening reply brief, don't ask for vacatur of the whole rule.

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You only ask that the 4D rule be vacated, quote, vacated in so far as it eliminates protections for the beetle in southern plains.

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So you're not asking for vacatur of the whole rule.

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You're asking for vacatur on the 4D issue, not the delisting issue.

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Correct.

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On the 4D issue, only in the southern plains.

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And yet, I see nothing in your declarations or supplemental brief.

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that suggests that you have a member that would be injured by the shortcomings that you allege in the Rule 4D rule in the Southern Plains.

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And given that you're only asking for partial vacatur here, I don't understand

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argument.

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Vacature helps you here.

[00:02:12] Speaker 07:
Yes.

[00:02:13] Speaker 07:
First of all, Your Honor, this court doesn't need to address the 4D rule if it finds in favor of the plaintiff.

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I just want to focus on standing on the 4D rule.

[00:02:21] Speaker 07:
OK.

[00:02:21] Speaker 07:
Thank you.

[00:02:23] Speaker 07:
Well, Your Honor, first of all, our complaint asks for a vacature of the entire 4D rule, and we continue to seek that.

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Your brief on appeal, both opening and reply brief, have the exact same conclusion.

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And you're only asking from this court, whatever you ask in your complaint, the only thing you're asking from this court is vacature of the 4D rule as applied to the Southern Plains analysis area.

[00:02:48] Speaker 07:
Yes.

[00:02:49] Speaker 07:
To that point, Your Honor.

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I mean, if I'm wrong to think that you're bound by your brief, let me know.

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But I assume you meant what you said.

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So this court has held that when a party alleges a concrete injury from an

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an agency rule, it has standing to challenge any essential component of that rule.

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And so here, the- You have to have standing for each form of relief requested.

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The party has to have standing for each form of relief requested.

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Correct.

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And so, I'm sorry to keep repeating myself, but back to the relief that's requested in your briefs.

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Yes.

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Do you have standing for that or does your standing

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as to the 4D rule depend upon obtaining vacature of the entire rule, including 4D protections everywhere.

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So what I'm hearing, just to clarify, what I'm hearing this court ask is whether or not Mr. Bugby is, because Mr. Bugby or none of our declarations established that were injured by the 4D rule specific

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to the Southern Plains, whether or not that.

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It's the only 4D arguments your briefs make.

[00:04:12] Speaker 07:
Correct, Your Honor.

[00:04:14] Speaker 07:
The answer to that question, I think, is no.

[00:04:18] Speaker 07:
Because, again.

[00:04:19] Speaker 06:
No, you don't have standing for that.

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This is separate from whether you have standing for the D listing.

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Right.

[00:04:26] Speaker 06:
Crystal clear.

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I'm only focused on the D listing.

[00:04:28] Speaker 07:
Right.

[00:04:28] Speaker 07:
I think, Your Honor, that the Center does have standing in terms of the 4D rule for the Southern Plains

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because of this concept that as long as we allege an injury from it and- From what?

[00:04:43] Speaker 07:
From the 4D rule.

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So I think, okay, so your honor, Mr. Bugby is harmed by the 4D rule.

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The injury can be completely divorced from the things pressed and the relief sought as long as there's some sort of generic injury, but you're not seeking relief for 4D injuries anywhere.

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So the connection here is that Mr. Bugbee has an injury from beetles in the New England analysis area.

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And because that injury.

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From the delisting.

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From the down listing.

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Because the down listing reduces protections to American-bearing beetles in New England.

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And because of that injury, that is enough to show vacatur of that entire 4D rule under this court's president.

[00:05:33] Speaker 06:
Um, Sierra Club V for then we'd have to vacate the 40 rule nationwide, not across all the all the analysis areas.

[00:05:41] Speaker 06:
We couldn't just vacate in the Southern Plains area.

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Yes.

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So you have no arguments in your brief for vacatur anywhere but the Southern Plains area.

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We certainly have the authority to vacate in part rule.

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And that's all that we've been asked to do.

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Right.

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That's where I'm getting confused here.

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I think your honor, you can still vacate the entire 40 rule.

[00:06:01] Speaker 03:
But is that as a result of

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of a finding in your favor on the down listing.

[00:06:06] Speaker 03:
No.

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The down listing, the 40 rule follows from the down listing.

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There's no 40 rule unless there's a down listing.

[00:06:12] Speaker 03:
Correct.

[00:06:13] Speaker 03:
I understand you to be arguing that there, as to standing, there's harm from the 40 rule in New England, regardless of your arguments or your request on the 40 rule.

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And the harm in New England flows from the down listing.

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And so you have standing to contest the down listing.

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And if you prevail on the down listing, then the 4D rule is vacated in its entirety.

[00:06:41] Speaker 07:
No, Your Honor.

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We have standing for both the 4D rule and the down listing.

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You're right in that.

[00:06:47] Speaker 03:
But you said no.

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But I was agreeing with you that you have standing on the down listing.

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Yes.

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So your answer would be yes on that one.

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Yes.

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And on the 4D rule, do you even need standing on the 4D rule if you have standing on the down listing?

[00:07:02] Speaker 07:
Well, if this court only addresses the 4D rule, I think.

[00:07:06] Speaker 06:
So assume we rule against you on downlisting.

[00:07:10] Speaker 07:
For downlisting, yes.

[00:07:11] Speaker 01:
How about let's just assume you didn't bring a downlisting claim?

[00:07:14] Speaker 01:
OK.

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So I think it would be possible just to bring a claim under the 4D rule.

[00:07:19] Speaker 07:
Yes.

[00:07:19] Speaker 01:
Yes.

[00:07:19] Speaker 01:
So if we just assume that, and you only have a 4D claim, and then your claim for relief is that,

[00:07:26] Speaker 01:
You want the 40 rule to be vacated insofar as it eliminates protections for the beetle in the southern plains.

[00:07:32] Speaker 08:
Yes.

[00:07:32] Speaker 01:
But then the support for the challenge is the one that you have, which is targeted at Block Island.

[00:07:40] Speaker 08:
Yes.

[00:07:41] Speaker 01:
Then would you have standing to challenge the 4D rule if that's the only thing that's at issue?

[00:07:48] Speaker 01:
Does that be of the question, at least?

[00:07:51] Speaker 07:
Yes, my answer is the same, because he's alleging an injury from the downlisting rule.

[00:07:59] Speaker 07:
And as long as he can adequately allege an injury, the plaintiff can raise any legal challenge that ultimately results in vacature of that 4D rule, because that would redress his injury.

[00:08:13] Speaker 07:
And I see your point, Your Honor, that we only have

[00:08:19] Speaker 07:
we only asked for vacatur of the Southern Plains analysis area.

[00:08:24] Speaker 07:
Our complaint- As to your 4D challenge.

[00:08:26] Speaker 07:
As to the 4D challenge, our complaint does not, and we just seek that remedy still here.

[00:08:42] Speaker 03:
So what is the injury to your client from the 4D rule in New England?

[00:08:48] Speaker 07:
Yeah, so the injury from the downlisting rule is that by downlisting the decision.

[00:08:56] Speaker 03:
No, I meant the 4D rule in New England.

[00:08:58] Speaker 06:
The 4D, OK.

[00:08:59] Speaker 06:
Let's assume there's no downlisting issue.

[00:09:01] Speaker 07:
OK, thank you.

[00:09:02] Speaker 07:
For the purpose of answering this question.

[00:09:03] Speaker 06:
It's preserved.

[00:09:04] Speaker 06:
We got it.

[00:09:05] Speaker 07:
OK.

[00:09:06] Speaker 07:
The 4D rule provides less protections against take than the species would have if it was endangered.

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And we presented an array of ways in which that is true.

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But perhaps the most obvious is that there's a reduction in those take protections.

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So the 40 rule only allows take if it occurs in suitable habitat as a result of soil disturbing activities.

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So in contrast, and when you compare that to an endangered listing,

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New England beetles were receiving a blanket prohibition against take.

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And now that loosening of protections on that very small population of bearing beetles on Black Island, Black Island, which is the population that Mr. Bubby is interested in, that population is 200 to 1,000 individuals.

[00:10:10] Speaker 06:
So take- Is Black Island suitable habitat or unsuitable habitat?

[00:10:16] Speaker 07:
Your Honor,

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It is unclear.

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So the government presents suitable habitat.

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If it were suitable habitat, then this change in take that doesn't apply to suitable habitat would have no effect.

[00:10:35] Speaker 07:
Right.

[00:10:36] Speaker 07:
Right.

[00:10:36] Speaker 06:
So we need to know that.

[00:10:37] Speaker 07:
Yes.

[00:10:38] Speaker 07:
Yes, Your Honor.

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So the reason why this 4D rule doesn't adequately protect suitable habitat is because as the government concedes,

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landowners have the discretion to determine whether or not their land is suitable habitat.

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And contrary to what the government argues, there is no requirement in the Act that requires landowners to consult with the service to ensure that their actions comply with this.

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And also, there's no requirement to apply, even if they're listed as an endangered species as well.

[00:11:13] Speaker 06:
Your Honor.

[00:11:14] Speaker 06:
They aren't consulting.

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There could be incidental take happening nonetheless.

[00:11:19] Speaker 07:
Right.

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But, Your Honor, by replacing this clear prohibition against take, regardless of where or how that occurred, and replacing it with this amorphous rule decreases or increases the likelihood of take.

[00:11:34] Speaker 07:
So as an example, a landowner who knows American Bering beetles exist on their land under this rule can now effectively destroy that land

[00:11:46] Speaker 07:
if there's a plausible belief that he doesn't, he or she doesn't have suitable habitat on that lands, on that land.

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And so the government presents this definition.

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And they wouldn't be able to do that.

[00:11:58] Speaker 06:
The beetle is still listed as endangered.

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Correct.

[00:12:02] Speaker 06:
And so they'd have a duty to consult.

[00:12:04] Speaker 07:
No, they wouldn't have a duty to consult, but the service, the service and citizen suits, citizens could more easily bring section nine claims because

[00:12:16] Speaker 07:
there isn't this amorphous definition, which even the most well-intentioned landowners.

[00:12:21] Speaker 06:
Why couldn't a Section 9 claim be brought for violation of 4D rule?

[00:12:26] Speaker 07:
For violation of this 4D rule, it would be particularly difficult.

[00:12:29] Speaker 07:
Because again, the definition that the service presents is that suitable habitat.

[00:12:34] Speaker 06:
You have to show that it's suitable habitat.

[00:12:37] Speaker 07:
Yes.

[00:12:37] Speaker 07:
And that is very hard.

[00:12:39] Speaker 07:
That would be very easy for landowners to show that they didn't realize

[00:12:45] Speaker 07:
their land is suitable.

[00:12:46] Speaker 03:
It has to be suitable habitat and as a result of soil disturbance.

[00:12:50] Speaker 03:
Exactly.

[00:12:51] Speaker 03:
And isn't there a concession even in the rule that some minimal level of take could occur incidental to ranching and grazing?

[00:12:58] Speaker 03:
That's exactly true.

[00:12:59] Speaker 03:
So then this is a concession that there may be fewer beetles.

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

[00:13:03] Speaker 03:
Mr. Bugby to observe.

[00:13:05] Speaker 06:
Yes.

[00:13:05] Speaker 06:
Ranching and grazing on Block Island.

[00:13:06] Speaker 06:
I know nothing about Block Island.

[00:13:08] Speaker 06:
This is just a factual question.

[00:13:09] Speaker 06:
Is there ranching and grazing?

[00:13:10] Speaker 06:
Is the area where he's going

[00:13:12] Speaker 06:
have a lot of private land ownership.

[00:13:14] Speaker 06:
I just don't know anything about Black Island.

[00:13:15] Speaker 07:
Yes, Your Honor.

[00:13:16] Speaker 07:
The majority of the land on Black Island is not, I can't say a majority.

[00:13:24] Speaker 07:
A lot of the island is private at JA 133 with ranching and grazing.

[00:13:30] Speaker 07:
Yes, JA 133.

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And yes, to your question, Judge Pan.

[00:13:40] Speaker 03:
Regardless,

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The rule says that there could be minimal level of take.

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Yes.

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Incidents for ranching and grazing.

[00:13:47] Speaker 03:
Yes.

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So that seems to me a concession.

[00:13:49] Speaker 03:
Yes.

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That there's going to be some more take.

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And if there's more take, there's fewer beetles.

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And Mr. Bugbee can be harmed.

[00:13:55] Speaker 07:
Exactly, Your Honor.

[00:13:55] Speaker 07:
And that's particularly true here, again, because the population could be as low as 200.

[00:14:00] Speaker 07:
So any level of take will impact his ability to observe the beetle.

[00:14:07] Speaker 06:
OK, sorry.

[00:14:07] Speaker 06:
Meron 133 does this.

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Black Island.

[00:14:13] Speaker 07:
So I might.

[00:14:15] Speaker 07:
So that.

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At 133.

[00:14:18] Speaker 06:
So it's second to third column.

[00:14:26] Speaker 06:
That's what they're talking about.

[00:14:27] Speaker 07:
Black Island is going to have to have that I sign and I might have to get the exact.

[00:14:35] Speaker 07:
Site on rebuttal, your honor.

[00:14:37] Speaker 07:
It might also be at 135.

[00:14:38] Speaker 06:
OK, that's fine.

[00:14:40] Speaker 06:
You can go ahead with your argument.

[00:14:41] Speaker 07:
OK.

[00:14:43] Speaker 07:
So yes, Judge Pan, the concession that there is a level of take that will occur on all ranching and grazing is enough to show that Mr. Bugbees does have an injury in his plans to observe the American Bearing Beetle, which is enough to establish standing for the 4D rule.

[00:15:03] Speaker 07:
Because again, under this court's precedent, as long as he could allege an injury from any portion of that 4D rule,

[00:15:10] Speaker 07:
if our arguments result in vacature of that 4D rule.

[00:15:16] Speaker 03:
But even if we don't agree with you on the 4D rule, if he is injured by the 4D rule, and the 4D rule is the direct result of the down listing, you would have injury from the down listing.

[00:15:32] Speaker 03:
So you could have standing to contest the down listing, but no standing to contest the 4D rule.

[00:15:40] Speaker 07:
Yes, Your Honor, you can.

[00:15:42] Speaker 03:
Based on your concession on the 4D rule that you're only seeking to vacate the Southern Plains aspect of the 4D rule, you might not have standing on the 4D rule.

[00:15:54] Speaker 03:
But because you're harmed by the 4D rule and its provisions with respect to New England, where Mr. Bugby is, you could have standing to contest the down listing because the down listing caused the 4D rule, which caused the injury.

[00:16:09] Speaker 07:
Yes.

[00:16:11] Speaker 03:
But I would argue that- The vacature of the down listing vacates the whole 4-D rule.

[00:16:15] Speaker 03:
Exactly.

[00:16:16] Speaker 03:
That is true.

[00:16:17] Speaker 07:
I see my time is up, unless this court would like me to address any questions on the merits.

[00:16:24] Speaker 06:
But I think it would be helpful to just pin some of this down, because 133 says about 2,000 acres of suitable habitat on Black Island.

[00:16:36] Speaker 06:
Much of it has protections are based on easements, which would not be changed by the 4D rule.

[00:16:44] Speaker 06:
And then on 135, it says a large percent of landmass in the New England analysis area is protected in some form.

[00:16:51] Speaker 06:
So I'm trying to understand just concretely, if we have a record before us, it allows us to determine that the particular 4D changes in the New England area, which haven't even been argued to us,

[00:17:06] Speaker 06:
Or at least there's the showing here.

[00:17:10] Speaker 06:
And this is for review.

[00:17:12] Speaker 06:
So you have to sort of show it at a summary judgment level standard here.

[00:17:16] Speaker 07:
And that's the issue, Your Honor, is that these factual challenges were never presented by the government in the lower court or at litigation here.

[00:17:27] Speaker 07:
And so if they had, the center could have put forth additional factual information.

[00:17:32] Speaker 07:
But that didn't happen.

[00:17:36] Speaker 07:
Right.

[00:17:37] Speaker 07:
And the government didn't contest in our summary judgment briefing our contention that our declarations did so.

[00:17:47] Speaker 07:
Had they done so, we could have presented additional factual support.

[00:17:53] Speaker 07:
And if this court is unsatisfied with the argument here, we're happy to provide a reply to the government's supplemental brief.

[00:18:06] Speaker 01:
There's no further questions at this time.

[00:18:13] Speaker 01:
OK, we'll give you some time for rebuttal.

[00:18:27] Speaker 00:
Mr. Anderson.

[00:18:29] Speaker 00:
Good morning, Your Honors, and may it please the Court, Christopher Anderson for the Fish and Wildlife Service.

[00:18:33] Speaker 00:
On standing with respect to the 4D rule, I think the simplest way to look at this is, as Judge Mouat said, CBD has not asked for vacater of any aspect of the 4D rule other than the restrictions in the Southern Plains area.

[00:18:46] Speaker 00:
They're bound by that in their briefs.

[00:18:47] Speaker 00:
Therefore, any injury to Mr. Bugbee on Block Island is not redressable by an order of this court vacating the 4D rule.

[00:18:53] Speaker 00:
Therefore, they don't have standing.

[00:18:55] Speaker 00:
We also would say, you know,

[00:18:58] Speaker 00:
Actually, for the first time this morning, has CBD clearly articulated some injury to Mr. Bugbee from the 4D rule, and the allegation being that because the 4D rule restricts the prohibition on incident to take to some extent,

[00:19:16] Speaker 00:
it harms his interest in observing the beetle on Block Island.

[00:19:18] Speaker 00:
I have a couple of issues with CBD's statement on that point.

[00:19:23] Speaker 00:
First, we do not concede that landowners have the discretion to determine what suitable habitat is.

[00:19:29] Speaker 00:
That's a decision that is made by the Fish and Wildlife Service in an enforcement action or a court in a Section 9 proceeding.

[00:19:38] Speaker 00:
It is never the case under the Endangered Species Act that a landowner is obligated to get some sort of pre-clearance before acting.

[00:19:45] Speaker 00:
take prohibitions and the Endangered Species Act are self-executing and landowners who proceed without consulting the service do so at their own risk of serious liability.

[00:19:56] Speaker 00:
So we don't see any issue there with the 4D rule limiting protections for the beetle on Block Island.

[00:20:02] Speaker 00:
The other point that I would make is while it is... Sorry, your honor.

[00:20:05] Speaker 06:
Are you still on standing for 4D?

[00:20:07] Speaker 00:
4D, but this point is also going to go to standing for down listing.

[00:20:10] Speaker 00:
Why don't we focus on that?

[00:20:14] Speaker 00:
One of the points that CBD makes is that the service conceded that exempting incident will take from ranching and grazing activities.

[00:20:25] Speaker 00:
would probably result in some minimal additional level of take, but they left out the other part of the services rationale, which is exempting ranching and grazing activities is likely to preserve ranching and grazing activity on Block Island, which will benefit the beetle by providing additional habitat.

[00:20:42] Speaker 03:
And that's particularly- Isn't that in the long run?

[00:20:44] Speaker 03:
Like immediately there will be fewer beetles and that's a harm.

[00:20:47] Speaker 03:
In the long run, they'll repopulate because the beneficial ranching and grazing made that better.

[00:20:52] Speaker 03:
But in the short term, there's a harm.

[00:20:54] Speaker 00:
No, I don't think that's right, Your Honor, because I think the service's rationale is about maintaining the current status quo on Block Island.

[00:21:01] Speaker 00:
Block Island has about 2,000 acres of suitable beetle habitat.

[00:21:05] Speaker 00:
The service found that grazing areas are suitable habitat on Block Island.

[00:21:09] Speaker 00:
That's a JA 420.

[00:21:11] Speaker 00:
The main threat to the beetle on Block Island, unlike

[00:21:15] Speaker 00:
in the Southern Plains is not climate change, but urban development.

[00:21:18] Speaker 00:
Black Island is a popular tourist destination.

[00:21:19] Speaker 00:
There's enormous pressure on these farms to make themselves available for development for tourist housing, which is not suitable beetle habitat.

[00:21:27] Speaker 00:
By reducing the burdens on the owners of these farms, it helps to encourage them to maintain their farming activities and maintain additional habitat.

[00:21:37] Speaker 03:
That doesn't address my question, which is, isn't that in the long run?

[00:21:40] Speaker 03:
In the short term, there's a concession that there will be

[00:21:45] Speaker 03:
more take.

[00:21:45] Speaker 03:
And in the long run, the service is saying, that's OK, because in the long run, ranching and grazing will help.

[00:21:53] Speaker 03:
But in the short term, there's injury to Mr. Bugbee if there are fewer beetles.

[00:21:57] Speaker 00:
I guess it may depend on what we mean by the short term and the long run.

[00:22:01] Speaker 00:
Beetles are an annual species.

[00:22:03] Speaker 00:
So the population levels fluctuate annually based on how much reproduction happened in the previous summer.

[00:22:10] Speaker 00:
So on a given day when a beetle might be taken because of this exemption,

[00:22:15] Speaker 00:
there would be one, two fewer beetles that day.

[00:22:18] Speaker 00:
But by maintaining the habitat, it ensures immediately, as soon as later this summer or next year, that the population of beetles will be as populous as can be in Block Island.

[00:22:31] Speaker 06:
You mentioned maintaining the status quo.

[00:22:33] Speaker 06:
But when a species is protected as endangered, the goal is not to maintain the status quo.

[00:22:39] Speaker 06:
It is to increase population to the point

[00:22:43] Speaker 06:
The statute says that the protections are no longer necessary, if possible.

[00:22:47] Speaker 06:
And so by downlisting, by taking them off the endangered species list, there will be fewer beetles than there would be if they were listed as endangered.

[00:23:03] Speaker 00:
on Black Island, Your Honor.

[00:23:04] Speaker 06:
I don't think that's correct, because I think that the combination... You could go beyond status quo when they're listed on the endangered list, and you would have both the protections for grazing going on, but less land disturbance by urban development.

[00:23:24] Speaker 06:
And so I don't know how there couldn't be more.

[00:23:26] Speaker 06:
Is it an injury if it's harder, or you can't see as many as you would like to see because

[00:23:33] Speaker 06:
they're at best maintaining status quo.

[00:23:35] Speaker 00:
I apologize, Your Honor.

[00:23:36] Speaker 00:
I didn't mean to suggest the 4D rule was only intended to maintain the status quo.

[00:23:40] Speaker 00:
And I think the service can act to conserve and increase the population of the beetle, whether it's threatened or endangered.

[00:23:47] Speaker 00:
I think what the service found when it issued the 4D rule is that the protections in that rule represent all the protections that could benefit the beetle on Block Island.

[00:23:56] Speaker 00:
And so not only does it help to maintain the status quo such that it isn't harming Mr. Bugby.

[00:24:01] Speaker 06:
Is it equivalent to what they would have when listed as endangered?

[00:24:05] Speaker 06:
or was something loosened?

[00:24:07] Speaker 00:
So there are, the incidental take prohibition is more restricted, but the service explained why that restriction will not harm the beetle because incidental take.

[00:24:17] Speaker 06:
But the service said that there, as Judge Pan pointed out, that there will be increased incidental take as a result of the downlisting.

[00:24:26] Speaker 00:
The service said the beetle will be better protected if ranching and grazing.

[00:24:30] Speaker 06:
If there will be increased incidental take, right, this is gonna happen.

[00:24:35] Speaker 00:
The service conceded that there may be some incidental take, but that the beetle will be better protected by exempting ranching and grazing activities fixed at the service habitat.

[00:24:42] Speaker 06:
Better protected means less incidental take, or what is it?

[00:24:45] Speaker 06:
I'm not sure what better protected means.

[00:24:47] Speaker 00:
Better protected means that the beetle will have a wider range of habitat on which to reproduce and will be more likely to survive into the future if the 4D rule is in effect than if the incidental take.

[00:24:59] Speaker 06:
Which is not inconsistent with more incidental take.

[00:25:02] Speaker 00:
It is not inconsistent with more incidental take, but again, so the question though is, is Mr. Bugby's interest in observing the beetle, right?

[00:25:08] Speaker 06:
That's right.

[00:25:08] Speaker 06:
I just want to focus on the, is the fact of increased incidental take sufficient to demonstrate an injury for purposes of Article 3 from someone who's looking to see these beetles?

[00:25:28] Speaker 00:
I don't think so, Your Honor, because I think that the services position is that there will be more beetles on Block Island with this 4D rule than there would be with a broader incidental take prohibition.

[00:25:40] Speaker 00:
Beetle populations fluctuate widely from year to year, so it's hard to know, but I think probably on average it would be the services position that that's the case.

[00:25:49] Speaker 01:
Can I just make sure to add to the upshot of that?

[00:25:50] Speaker 01:
Is the upshot of that then that the beetle is going to be better off if the down listing

[00:25:59] Speaker 01:
happens.

[00:26:00] Speaker 01:
Yes, I believe that's the services position on Block Island.

[00:26:03] Speaker 01:
It's worse off for the beetle to be endangered on Block Island than it is to be threatened.

[00:26:08] Speaker 00:
I think that's correct based on the services findings that the broader take prohibition actually is counterproductive to conservation of beetle habitat.

[00:26:15] Speaker 00:
But I would also make one more point on the number of beetles.

[00:26:18] Speaker 00:
It is the center's burden.

[00:26:20] Speaker 03:
I can't get over this.

[00:26:21] Speaker 03:
You're saying it's better for the beetle to be threatened than endangered on Block Island?

[00:26:25] Speaker 00:
I think what the service found is that it benefits the beetle to exempt ranching and grazing activity in general on Block Island.

[00:26:33] Speaker 03:
So yes, they're better off as a threatened species than an endangered species.

[00:26:38] Speaker 00:
Not necessarily because if they were endangered, the service could issue a programmatic incident or take other actions to exempt ranching and grazing activities.

[00:26:48] Speaker 00:
But because they are threatened, the service, in its 4D rule, was able to exempt ranching and grazing activities in that fashion.

[00:26:54] Speaker 06:
So if they're endangered, you can have your increased grazing through this exemption and prohibit those other incidental takes that are otherwise going to happen now that it's just listed as threatened.

[00:27:05] Speaker 00:
No, because the only additional incidental takes that the service predicted would occur are related to ranching and grazing activities.

[00:27:13] Speaker 06:
There's urban development as well.

[00:27:15] Speaker 00:
Urban development is still prohibited by the 4D rule because to the extent that it infringes on suitable beetle habitat, there'll be soil disturbing activity.

[00:27:24] Speaker 06:
That's a big question.

[00:27:25] Speaker 06:
So I guess there's different ranges of suitable habitat, correct?

[00:27:34] Speaker 00:
That is correct.

[00:27:35] Speaker 00:
I believe all of the habitat that's considered suitable on Block Island is, I forget the term that the service uses, but.

[00:27:43] Speaker 04:
Conditional or?

[00:27:45] Speaker 00:
I think might be the grazing habitat.

[00:27:49] Speaker 06:
It is a bit counterintuitive since you said that even if they're listed as endangered, you could still make this exemption for grazing, ranching and grazing.

[00:28:02] Speaker 06:
So you could have your pig and eat it too, which would seem to be the maximum protection for the beetle.

[00:28:07] Speaker 06:
And what they're doing by downlisting it is

[00:28:12] Speaker 06:
getting the ranching and grazing in there, but recognizing, they say in the rule, there's gonna be an increase in incidental take.

[00:28:18] Speaker 06:
And I'm just not, that would not happen, but for the downlist.

[00:28:24] Speaker 06:
I just don't know how we can get around that for standing purposes.

[00:28:27] Speaker 00:
So Judge Muller, I think the question is not whether, for standing purposes, whether there'll be additional incidental take.

[00:28:32] Speaker 00:
I think the question is whether there'll be more or fewer beetles for Mr. Bugby to observe.

[00:28:36] Speaker 00:
I think the services position is that there are likely to be more beetles with the 4D rule

[00:28:41] Speaker 00:
And I think it's CBD's burden to show that that analysis is incorrect.

[00:28:45] Speaker 00:
And they haven't even tried to make that argument.

[00:28:47] Speaker 00:
They've just sort of said it's less, and so therefore we win.

[00:28:50] Speaker 00:
And I don't think that is sufficient to carry their burden for standing.

[00:28:55] Speaker 06:
Well, if there's five less, there's not that many Beatles to begin with on Black Island.

[00:28:59] Speaker ?:
It's true.

[00:29:00] Speaker 06:
So if there's five or 10 less, that's injury to him.

[00:29:06] Speaker 00:
There might be five or 10 less, Your Honor, but there also might be 50 or 100 more.

[00:29:09] Speaker 03:
In the long run.

[00:29:11] Speaker 00:
not in any given point in time because of the annual nature of beetle reproduction.

[00:29:17] Speaker 03:
This is not about- So let's be clear about the timing here.

[00:29:20] Speaker 03:
There's ranching and grazing.

[00:29:22] Speaker 03:
A bunch of beetles are taken.

[00:29:23] Speaker 03:
So that's happened.

[00:29:25] Speaker 03:
And then you're saying, because of the ranching and grazing, this area is going to be better suited to beetles.

[00:29:31] Speaker 03:
And so in the next cycle, there might be more.

[00:29:35] Speaker 03:
Because we're not going to have a bunch of beetles immediately born because of your ranching and grazing.

[00:29:39] Speaker 03:
So there is a time lag between the incidental take, which harms Mr. Bugbee, because he's looking for beetles.

[00:29:46] Speaker 03:
There are fewer for him to see.

[00:29:47] Speaker 03:
And what you're saying will ameliorate that.

[00:29:49] Speaker 03:
That's later.

[00:29:50] Speaker 00:
I agree with that, Your Honor.

[00:29:54] Speaker 00:
But it also depends on when Mr. Bugbee plans on being there.

[00:29:58] Speaker 00:
It literally depends on the day.

[00:29:59] Speaker 00:
And I think at that

[00:30:01] Speaker 00:
At that level of granularity.

[00:30:04] Speaker 06:
You're just about to say, I think, level of granularity.

[00:30:06] Speaker 06:
It says standing at that level.

[00:30:08] Speaker 06:
It doesn't have to say exactly which day and what hour.

[00:30:11] Speaker 00:
I completely agree, Your Honor, and that's why I go back to it's his burden to show that the service's rationale.

[00:30:17] Speaker 06:
Right.

[00:30:18] Speaker 06:
And he says the service has found there's going to be an increase in incidental take.

[00:30:23] Speaker 00:
The service found that there may be some minimal incidental take.

[00:30:25] Speaker 06:
There will be.

[00:30:26] Speaker 06:
I believe it said will be.

[00:30:29] Speaker 00:
It may be, Your Honor, I don't have it in front of me, but in any event, if that is sufficient, then he has standing.

[00:30:37] Speaker 00:
But again, we don't think it is because we think that what matters is the full analysis.

[00:30:42] Speaker 03:
So you agree that he has standing if he is harmed by the 4D rule in Block Island because the 4D rule

[00:30:49] Speaker 03:
Or we're standing for the delisting, downlisting.

[00:30:51] Speaker 00:
I agree he has standing for the downlisting if he has standing.

[00:30:55] Speaker 00:
If he's harmed by the 4D rule in Block Island.

[00:30:58] Speaker 00:
Yes, Your Honor.

[00:30:59] Speaker 03:
Thank you.

[00:30:59] Speaker 03:
That simplifies our analysis.

[00:31:00] Speaker 00:
Yes, yes.

[00:31:01] Speaker 00:
But again, we don't think he has standing for either because of.

[00:31:05] Speaker 06:
But you're right.

[00:31:05] Speaker 06:
You said to say may, so you're right on that one.

[00:31:07] Speaker 00:
OK.

[00:31:08] Speaker 03:
So can we go to the merits?

[00:31:11] Speaker 00:
Yes, please, Your Honor.

[00:31:12] Speaker 03:
So I am looking at.

[00:31:15] Speaker 03:
the agency rationale for this finding.

[00:31:20] Speaker 03:
And I understand that a lot of the dispute in the district court was about temporal issues, whether you're in danger now versus in the foreseeable future.

[00:31:31] Speaker 03:
But what struck me as missing from the agency's analysis was, what does endanger or be in danger mean?

[00:31:38] Speaker 03:
Because what I see in this record is a lot of data about

[00:31:44] Speaker 03:
zero resiliency, low resiliency, moderate resiliency.

[00:31:49] Speaker 03:
And it seems from my reading of the record that the agency is equating danger or in danger of extinction with zero resiliency, because that's what we have in the 20, 39 to 60 range.

[00:32:09] Speaker 03:
there's still low resiliency in the current range.

[00:32:13] Speaker 03:
And there's really no explanation as to why low resiliency isn't also in danger of extinction.

[00:32:19] Speaker 03:
I understand it's not as imminent or as serious a risk, but it still seems to be a pretty serious imminent risk.

[00:32:26] Speaker 03:
And there's no explanation as to why that type of low resiliency doesn't qualify as in danger or of extinction.

[00:32:36] Speaker 00:
Sure, your honor.

[00:32:36] Speaker 00:
So a couple of points first on the general how the service understands endangerment.

[00:32:41] Speaker 00:
The service understands to be in danger of extinctions, to

[00:32:45] Speaker 00:
be on the brink of extinction, meaning that the conditions that the species faces are such that the species could go, not necessarily will go, but could go extinct in the relatively near term.

[00:32:56] Speaker 03:
But can you translate that to resilience?

[00:32:58] Speaker 00:
Yeah, and translating that, that was going to be my second word.

[00:33:01] Speaker 00:
First, the only area in which resiliency is projected to be low between now and 2039 is the Red River analysis area.

[00:33:09] Speaker 00:
The other areas are currently showing moderate to high resiliency.

[00:33:13] Speaker 03:
No, I thought it was low.

[00:33:15] Speaker 03:
It's low.

[00:33:15] Speaker 03:
Right now, it's zero in Red River, and it's low.

[00:33:20] Speaker 00:
It will decline between now and 2039 to low.

[00:33:24] Speaker 00:
At the time of the down listing, the other areas were showing moderate to high resilience.

[00:33:30] Speaker 06:
What other areas are you talking about?

[00:33:31] Speaker 06:
I'm looking at the table on JA 312.

[00:33:36] Speaker 06:
And that's between 2010 and 2039.

[00:33:38] Speaker 06:
So I don't know why this is only going to happen in 2031.

[00:33:45] Speaker 00:
So that's what's expected at the end of the 2010 to 2039 period.

[00:33:56] Speaker 00:
So at the time, at the time the rule was issued in 2021.

[00:34:03] Speaker 06:
It doesn't happen on a day in December 30.

[00:34:07] Speaker 00:
No, I agree with you.

[00:34:09] Speaker 00:
I agree with you, Your Honor.

[00:34:10] Speaker 00:
It does not.

[00:34:10] Speaker 06:
It starts back in 2010, even though the rule was 2020.

[00:34:16] Speaker 06:
What was the status in 2020?

[00:34:20] Speaker 00:
In 2020, the resiliency of the beetle in most analysis areas was moderate or high.

[00:34:28] Speaker 00:
The exception, I believe, was the Red River analysis area.

[00:34:32] Speaker 03:
I don't know where they get moderate to high when you look across the chart.

[00:34:38] Speaker 03:
It's all low or zero.

[00:34:40] Speaker 00:
So the service expects by 2039 that resiliency will be low in the areas that's shown on that chart at J312.

[00:34:49] Speaker 01:
Where would we like to see that?

[00:34:51] Speaker 01:
I think I understand that.

[00:34:53] Speaker 01:
Yeah.

[00:34:54] Speaker 01:
Low could be at any point in that range.

[00:34:55] Speaker 01:
And you're saying low is actually at the end of the range from 2029.

[00:34:58] Speaker 01:
Right.

[00:34:58] Speaker 01:
We'd like to see that at 2020, it hadn't already gotten to low.

[00:35:04] Speaker 01:
Was it moderate or high in the sub-complained areas other than red fur?

[00:35:09] Speaker 00:
Yeah.

[00:35:10] Speaker 00:
I think, I'm sorry.

[00:35:18] Speaker 00:
It would be in the section of the species status report on current conditions.

[00:35:22] Speaker 00:
And I will have to find a page site for your honor for that.

[00:35:27] Speaker 01:
But just so I'm understanding it conceptually, your representation is that even though this chart says low for all of the areas, at least low for all of the areas in the southern plain, what it means is low at the end of the temporal duration covered by this category, which is 2039, not low as of the time

[00:35:46] Speaker 01:
that the order sheet.

[00:35:48] Speaker 00:
That's correct.

[00:35:48] Speaker 00:
And you look at the caption, the chart's future resiliency under those climate change scenarios.

[00:35:52] Speaker 06:
So you have to tell me where they make that particular finding, as opposed to this is a range of time.

[00:36:00] Speaker 06:
Climate change is variable, could get worse, could be sooner.

[00:36:05] Speaker 06:
So where do they say it's not until the very end of this range, as opposed to say 2030 that these things are expected to happen?

[00:36:15] Speaker 06:
Where do they say that with this chart?

[00:36:17] Speaker 00:
They don't say that because the services predictions are not made at that level of specificity.

[00:36:22] Speaker 00:
The climate change modeling is average temperatures over 30 year time periods.

[00:36:26] Speaker 06:
But if you're modeling here, if you're dealing with a risk that is variable and can increase, it seems to me quite strange that you think that this chart is actually a prediction that everything will be hunky dory until 2038.

[00:36:43] Speaker 06:
or maybe January, mid summer 2039.

[00:36:46] Speaker 00:
Your honor, I think you misunderstand what I'm trying to say.

[00:36:50] Speaker 00:
No one is suggesting that things are going to be hunky dory until 2039.

[00:36:54] Speaker 00:
The service expects the conditions of the beetle to decline over the next 20 years from the time the rule was issued.

[00:37:02] Speaker 00:
But the service does not believe that until 2039 or about then,

[00:37:07] Speaker 00:
that conditions will decline sufficiently that they put the beetle on the brink of extinction or in danger of extinction.

[00:37:13] Speaker 00:
So I don't disagree with your honor.

[00:37:17] Speaker 06:
I think the range is sometime in this range this is expected to happen.

[00:37:22] Speaker 06:
Otherwise, you wouldn't say, you would just say, this is a prediction that'll have this status until 2039.

[00:37:28] Speaker 06:
But you have a range.

[00:37:30] Speaker 06:
And for the other things, a range.

[00:37:32] Speaker 06:
And throughout the rule, they talk about these things can happen within this time period, not an end date.

[00:37:40] Speaker 06:
So if you've got a place where they say, we do not expect

[00:37:43] Speaker 06:
these chart values to be hit until the end date, as opposed to within the range that's given.

[00:37:50] Speaker 06:
How can we read the chart that way?

[00:37:53] Speaker 06:
It would be very material if this could be happening in 2030 rather than 2039.

[00:37:57] Speaker 00:
It could be, but the service doesn't have information to predict that, and the service has to act on the best available science.

[00:38:06] Speaker 06:
I'm trying to pin you down on whether, if you can show me where their prediction was,

[00:38:12] Speaker 06:
notwithstanding our range here, that this will not happen, we think it's most likely or likely that it will not happen until the last year of the range.

[00:38:25] Speaker 06:
Or do they instead say within this time period, we expect it to get to this point?

[00:38:31] Speaker 00:
What they say is by the end of the time period, which could be earlier.

[00:38:34] Speaker 06:
Yes.

[00:38:35] Speaker 06:
So then that's a much more close in time risk of pretty abysmal conditions for the largest area in which this beetle is.

[00:38:47] Speaker 00:
Well, but the problem I think your honor is that the service doesn't have the information to know how much closer it might be.

[00:38:55] Speaker 00:
That the modeling that was done were average temperatures over 30-year time periods.

[00:39:01] Speaker 00:
Until the end of that time period, the service can only say by the end of it.

[00:39:09] Speaker 03:
So given that they can't say that, why isn't it arbitrary and capricious that the service is saying that they're not in danger now?

[00:39:19] Speaker 00:
Because the service, looking at not just temperatures, but other aspects of the beetle's life cycle and other threats to the beetle, felt that the science didn't show that it was reasonably likely that the beetle would be... But is that a standard that we can uphold?

[00:39:33] Speaker 03:
They felt it didn't show?

[00:39:35] Speaker 03:
I mean, well, it is arbitrary and capricious, is it not, to say something is not in danger of extinction because that's what we feel?

[00:39:43] Speaker 03:
Don't you have to tie that to the data?

[00:39:45] Speaker 03:
which shows low resilience or zero resilience between 2010 and 2039, why isn't low or zero resilience between 2010 to 2039 in danger or endangered now?

[00:40:00] Speaker 00:
So for purposes of listing as endangered, now is what matters.

[00:40:06] Speaker 00:
And I did find the chart I was looking for, Your Honor.

[00:40:08] Speaker 00:
It's a JA 413 that lists current resiliency.

[00:40:15] Speaker 00:
It's at least one place where they look to the current resiliency and now now being 2021 the service found that the conditions were such that the beetle was not in danger and the service found that at some point over the next 20 years from 2021.

[00:40:30] Speaker 03:
But that doesn't answer my question as to why is it not in danger now if its resiliency is low or zero.

[00:40:35] Speaker 00:
Because in 2021, its resiliency was not lower zero.

[00:40:39] Speaker 00:
In 2021, the service projected that the resiliency would decline over the following 20 years to lower zero.

[00:40:44] Speaker 03:
I'm just looking at the data that says climate change, 2010 to 2039, either moderate or high admissions, low or zero between 2010 to 2039.

[00:40:54] Speaker 03:
And why is that not in danger now?

[00:40:57] Speaker 00:
Because it's a prediction of future conditions.

[00:40:59] Speaker 00:
It's not an analysis of what the conditions were in 2021.

[00:41:01] Speaker 01:
Can I ask this?

[00:41:03] Speaker 01:
Sure, please.

[00:41:04] Speaker 01:
Based on 413,

[00:41:06] Speaker 01:
is the point that the last column on 413 says that as of the time that the determination was made, is it 2021?

[00:41:18] Speaker 01:
Yes, that's when the final rule was.

[00:41:20] Speaker 01:
Then for the southern plains, you see a moderate, a high, and a low.

[00:41:27] Speaker 01:
So you're saying that as of that time,

[00:41:30] Speaker 01:
Yes, there's low for Red River, I guess.

[00:41:33] Speaker 01:
Correct.

[00:41:33] Speaker 01:
But for Flint Hills and Arkansas River, it's moderate or high.

[00:41:36] Speaker 01:
Yes, that's correct.

[00:41:38] Speaker 01:
And then it's true that on the other chart, which is at 312 and 474, I think,

[00:41:44] Speaker 01:
that it's going to become low by the end of the range.

[00:41:47] Speaker 01:
I don't know exactly what point in time it's going to transition from moderate to high to low.

[00:41:52] Speaker 01:
You're saying Fish and Wildlife Service doesn't know exactly when that's going to happen, but the projection is that it's going to happen by the end of the range.

[00:41:57] Speaker 01:
That's correct.

[00:41:58] Speaker 01:
But as of the time the determination was made, it was moderate or high.

[00:42:01] Speaker 01:
That's correct, Your Honor.

[00:42:02] Speaker 01:
Can I ask you this question?

[00:42:04] Speaker 01:
Suppose it were low as of the time the determination was made, then would you

[00:42:09] Speaker 01:
concede that if it's low at that time, then the status is endangered rather than threatened.

[00:42:17] Speaker 00:
Or do you?

[00:42:17] Speaker 00:
So if it were low throughout all the analysis areas or majority of them, I think that- Just in the Southern Plains.

[00:42:23] Speaker 00:
So we're just looking at the Southern Plains.

[00:42:24] Speaker 00:
If it were low throughout the Southern Plains, you know, I- Which is significant.

[00:42:29] Speaker 01:
I think that the Southern Plains qualifies as a

[00:42:32] Speaker 00:
I forget how exactly.

[00:42:32] Speaker 00:
A significant portion of the range.

[00:42:34] Speaker 00:
The service hasn't made that finding, but we're not contesting it.

[00:42:37] Speaker 06:
59%.

[00:42:38] Speaker 00:
We're not contesting it, Your Honor.

[00:42:41] Speaker 01:
So if it were low across the southern plains, at the time that the determination was made, then would that be endangered as opposed to threatened under the service's rationale?

[00:42:52] Speaker 00:
Sure.

[00:42:53] Speaker 00:
With the caveat that I am not a scientist and it's a scientific determination, I think likely yes.

[00:42:58] Speaker 01:
OK.

[00:42:58] Speaker 01:
So then a lot of it turns on.

[00:43:01] Speaker 01:
in your view, the difference between the time that the determination was made being moderate to high, at least to a significant part.

[00:43:09] Speaker 01:
Because I think that's the overall majority of southern plains if I'm remembering right.

[00:43:12] Speaker 01:
Yes, yes.

[00:43:12] Speaker 01:
It's like 85% approximately.

[00:43:15] Speaker 01:
But then acknowledging that it's going to be low because the service itself predicts it's going to be low by the end of the range.

[00:43:20] Speaker 01:
Yes.

[00:43:20] Speaker 01:
And coral range.

[00:43:21] Speaker 00:
Yes, which means that the beetle is likely to become endangered in the foreseeable future, which is the definition of a threatened species.

[00:43:28] Speaker 00:
And the service predicts.

[00:43:29] Speaker 03:
Next year, the foreseeable future.

[00:43:32] Speaker 00:
So proximity certainly matters, Your Honor, but we don't think that for SQL.

[00:43:36] Speaker 03:
But it could be, based on your concession, endangered next year.

[00:43:41] Speaker 03:
And there's only a five-year review period.

[00:43:45] Speaker 00:
I did not mean to concede that the service thought that it was likely.

[00:43:49] Speaker 03:
I think you said that it's likely that if the whole southern plane was either low to zero, that would be endangered.

[00:43:56] Speaker 03:
And you're saying you don't know when it's going to get to loaded zero, but it'll be sometime within the next 17 years.

[00:44:01] Speaker 03:
So I'm saying if it's in 60 days, if it's in six months, if it's in a year.

[00:44:07] Speaker 03:
that it could be by your concededly, it could concededly be endangered within the next six months or a year.

[00:44:16] Speaker 03:
There's not another review for another five years.

[00:44:18] Speaker 00:
So your honor, I apologize if I misspoke.

[00:44:20] Speaker 00:
We do not concede that the data show that the average temperature over the 30 year time period.

[00:44:25] Speaker 03:
No, the concession was if it were low to zero for the entire Southern Plains, then it likely would be endangered.

[00:44:32] Speaker 00:
That concession I will make for you.

[00:44:35] Speaker 00:
And that's what I'm talking about.

[00:44:36] Speaker 03:
It could be that in three months, in six months, in a year, in two.

[00:44:41] Speaker 03:
And there's not a review until five.

[00:44:42] Speaker 00:
And that's the second part that I'm not conceding, Your Honor, that the service thinks that it's reasonably possible that temperatures would increase that much over that short time period when the temperature increase was modeled over a year.

[00:44:53] Speaker 03:
But we're not talking about temperature increase.

[00:44:54] Speaker 03:
We're talking about resiliency or non-resiliency.

[00:44:58] Speaker 00:
Right.

[00:44:58] Speaker 00:
But resiliency depends on the temperature increase.

[00:44:59] Speaker 03:
It does.

[00:45:00] Speaker 03:
It does.

[00:45:01] Speaker 03:
But many times in the past couple of years, we've seen articles that say, oh, it's so much worse than we thought.

[00:45:09] Speaker 03:
So in terms of climate change.

[00:45:10] Speaker 03:
So I'm just saying that if you concede that low to zero would be endangered, and endangered could happen in a year or two or three, why is the beetle not endangered now for our purposes?

[00:45:27] Speaker 00:
So we don't concede that

[00:45:28] Speaker 00:
low to zero could be in a year or two or three.

[00:45:32] Speaker 00:
The services position, I don't have a page site for it, but it's clear throughout the analysis of the SSA and in the preamble to the final rule is that the conditions that would put the beetle at risk are not likely to occur until towards the end of the 30-year period.

[00:45:45] Speaker 03:
But what's the basis for that?

[00:45:46] Speaker 03:
I'm sorry.

[00:45:47] Speaker 03:
Go ahead.

[00:45:48] Speaker 03:
What is the basis for that?

[00:45:49] Speaker 06:
You just said you have no idea when.

[00:45:52] Speaker 06:
If there's a finding of towards the end, that would be helpful to me.

[00:45:55] Speaker 00:
It would be helpful, Your Honor, and I don't have that for you.

[00:45:59] Speaker 00:
But the point is that the modeling is for average periods over time.

[00:46:03] Speaker 00:
We know temperature is going to increase more or less linearly.

[00:46:06] Speaker 00:
There will be some ups and downs.

[00:46:07] Speaker 00:
And so to achieve the average temperatures, we need more of those high-temperature years which are going to occur towards the end of the 30-year time period.

[00:46:16] Speaker 01:
Can I answer this question?

[00:46:18] Speaker 01:
So two questions, actually, that are related.

[00:46:20] Speaker 01:
But the first one is, you said you don't have it.

[00:46:23] Speaker 01:
you don't have it, and it being the determination that it's more likely to happen towards the end.

[00:46:29] Speaker 01:
Are you saying you don't have it because it's not in there, or you just don't have it at the ready?

[00:46:33] Speaker 00:
I don't have it at the ready.

[00:46:35] Speaker 00:
I would have to look again.

[00:46:37] Speaker 00:
It may be in there, yes.

[00:46:38] Speaker 00:
But you don't know for sure that it is in there.

[00:46:40] Speaker 01:
I do not, Your Honor.

[00:46:41] Speaker 01:
OK, got it.

[00:46:41] Speaker 01:
That's fine.

[00:46:43] Speaker 01:
So what will we do with the situation in which let's suppose

[00:46:47] Speaker 01:
I mean, it would be really nice if, scientifically, it were possible to, with some reliable degree of uncertainty, chart exactly when certain temperatures are going to be achieved in the future.

[00:46:56] Speaker 01:
I mean, I take it as a given that, scientifically, it would be you could try to project it, but it's not with a sufficient degree of reliability.

[00:47:03] Speaker 01:
So let's just suppose that it's uncertain.

[00:47:05] Speaker 01:
So the best science tells us that by 2039, the climate conditions are going to be such that it's going to be, the reliability is going to be, resiliency, sorry, is going to be low.

[00:47:16] Speaker 01:
And the best science tells us that now we haven't gotten there, that it's moderate to high.

[00:47:20] Speaker 01:
And we're not exactly sure when that's going to happen.

[00:47:23] Speaker 01:
It's going to happen at some point.

[00:47:24] Speaker 01:
And to me, I agree with Judge Pan that the five-year period seems like a reasonably significant one because that's when the automatic review happens.

[00:47:31] Speaker 01:
And if we just don't know whether it's going to transition with a degree of reliability from moderate or high to low within that cycle, then where does that leave?

[00:47:42] Speaker 01:
It's just an honest question.

[00:47:43] Speaker 01:
Where does that leave the service in terms of its discretion to say, we think that's only threatened as opposed to endangered, or we think that the possibility that it could go low by then means that we have to do endangered rather than

[00:47:54] Speaker 00:
So I think that that is a hard question.

[00:47:57] Speaker 00:
And it's a question that depends on science, but also policy judgment.

[00:48:01] Speaker 00:
And so I think it is within the service's discretion to determine whether the facts of a particular species justify a finding of endangerment now or a finding of threatened for the future.

[00:48:13] Speaker 00:
And as long as the service adequately explains how it got there from the facts that it found and the science that it has, I think that's a determination that is for the service and should be upheld by the court.

[00:48:26] Speaker 01:
Because I think the question is, is it arbitrary to say, it'd be one thing to say, if there's any risk that the species becomes endangered by the next automatic review period, then it's arbitrary not to treat it, it being the species, as in danger.

[00:48:48] Speaker 01:
Is that your understanding of the way the statute works or is?

[00:48:51] Speaker 00:
No, I don't think the standard can be any risk.

[00:48:54] Speaker 00:
I think that the service has to think that it's.

[00:48:59] Speaker 00:
reasonably likely that the endangerment will happen in the foreseeable future.

[00:49:02] Speaker 00:
I think this court's recent decision in Massachusetts Lobsterman's Associations is a different context, but strongly pointed out that the ESA, the best available science requirement, does not allow the service to rely on worst case projections.

[00:49:16] Speaker 00:
And so I think for that reason, any risk wouldn't be the standard.

[00:49:20] Speaker 00:
I think you can imagine a situation in which the service had found not that

[00:49:26] Speaker 00:
Endangerments likely by 2039, but endangerments likely by 2025.

[00:49:29] Speaker 00:
And I think at that point, the service might very well have said now is the time.

[00:49:34] Speaker 00:
I think these are very hard judgment calls to make based on very.

[00:49:38] Speaker 01:
So then what's the best information that you can give us on?

[00:49:44] Speaker 01:
that the reasons that the service determined that we're not at that stage that by the next five-year cycle, we're going to lapse into low, or at least we're not sufficiently at that stage.

[00:49:55] Speaker 01:
And therefore, we're sufficiently assured that for now, at least, because I think I take the point that naming it threatened for now doesn't mean it's threatened for all time.

[00:50:03] Speaker 01:
It means that it could well be endangered in the next cycle.

[00:50:07] Speaker 01:
But for now, at least, we're comfortable saying it's threatened rather than endangered because

[00:50:11] Speaker 01:
there's not a sufficient degree of likelihood that we're going to cross that threshold from going from moderate high and 85% of the area down to low.

[00:50:19] Speaker 01:
What's the best explanation?

[00:50:22] Speaker 00:
So I think what was most important to the service is that there are a larger number of populations, not just a number of beetles, but a number of distinct populations that were known at the time of listing that those populations

[00:50:36] Speaker 00:
currently are showing, including in the southern plains, showing decent resiliency in the two more northerly areas.

[00:50:43] Speaker 00:
The catch rates recently have been pretty good in those areas for spots where the beetle was monitored.

[00:50:49] Speaker 06:
And I think- I'll say pretty recently, I'm sorry to interrupt real quickly.

[00:50:53] Speaker 06:
You mean pretty recently now or pretty recently around 2020?

[00:50:58] Speaker 00:
Around 2020, based on the time of the species status assessment.

[00:51:01] Speaker 00:
And so at the time of the species status assessment, the beetle in the southern plains outside of the Red River analysis area appeared to be doing well.

[00:51:10] Speaker 00:
And so on that basis, the service thought that based on the projection of

[00:51:17] Speaker 00:
increased temperatures that the beetle was likely to maintain that resiliency for some number of years sufficient to allow them to monitor the situation.

[00:51:25] Speaker 03:
So to put that in context, though, when the beetle was first listed, it had lost 90 percent of its range.

[00:51:34] Speaker 03:
And then in 2008, when it was the listing was reviewed, it was still found to be endangered.

[00:51:42] Speaker 03:
And at that time, they said, we have found a few more populations of beetles.

[00:51:48] Speaker 03:
But we had always thought we might.

[00:51:50] Speaker 03:
And that's not really evidence that the beetles are doing better.

[00:51:54] Speaker 03:
It's just that we didn't know about these pockets.

[00:51:56] Speaker 03:
It doesn't mean that the environmental factors, et cetera, are not still affecting the beetles in the same way.

[00:52:01] Speaker 03:
And I think I read that since 2008, they haven't found new populations of beetles.

[00:52:06] Speaker 03:
It was in Judge Nichols' opinion.

[00:52:08] Speaker 03:
There haven't been any new ones since 2008.

[00:52:11] Speaker 03:
And it just seems to me that it was endangered in 2008.

[00:52:14] Speaker 03:
Everything that was threatening them in 2008 still exists.

[00:52:18] Speaker 03:
Plus, we have climate change.

[00:52:20] Speaker 03:
But now they're only threatened.

[00:52:21] Speaker 00:
So I think a couple of things on that, Your Honor.

[00:52:23] Speaker 00:
I think you are correct that no new populations have been discovered.

[00:52:28] Speaker 00:
But one experimental population has been established in Missouri.

[00:52:31] Speaker 00:
And other reintroduction efforts are ongoing in a couple of other locations.

[00:52:36] Speaker 00:
I think one thing that the service found that was important was that the new populations they had discovered had been stable since 2008.

[00:52:42] Speaker 00:
And that's led the service to conclude tentatively, but to conclude that the pressures that caused the beetle to decline in the first half, two thirds of the 20th century are apparently no longer pressuring the beetle in the remaining areas where it exists.

[00:52:57] Speaker 00:
So the service is not worried apart from climate change.

[00:53:00] Speaker 00:
that the populations that are known to exist are at risk of extinction based on the other factors, the other threats that the service knows to be applicable to the beetle.

[00:53:12] Speaker 00:
And so that's the difference is that we've now seen those populations be stable over a period of time, which in 2008 the time had been less.

[00:53:21] Speaker 00:
And so the service feels more comfortable concluding that whatever caused the drastic decline in the 20th century, that those factors, if they're not no longer at issue at all, or at least such that they're not currently putting existential pressure on the beetle.

[00:53:37] Speaker 03:
So has the service found that those other pressures are less?

[00:53:43] Speaker 00:
Yes, that's in the species status assessment.

[00:53:45] Speaker 00:
They do say, again, all of these findings

[00:53:48] Speaker 00:
There's just much less data than we would like.

[00:53:50] Speaker 00:
All these findings are tentative to some extent.

[00:53:52] Speaker 00:
But the species status assessment did find that it appears that those pressures are no longer threatening the existing beetle populations.

[00:54:00] Speaker 06:
But there's a new threat, which is climate change.

[00:54:01] Speaker 00:
There is a new threat, which is climate change, yes, Your Honor.

[00:54:03] Speaker 06:
But there are also threats about access to the right size of carrion.

[00:54:09] Speaker 00:
Yeah, so that is the threat that the best hypothesis for why the beetle declined in the 20th century.

[00:54:15] Speaker 00:
But that is the threat that at least for the- That it wasn't ameliorated.

[00:54:18] Speaker 06:
No, for this continues or climate change creates the same problem.

[00:54:23] Speaker 00:
Climate change could create it.

[00:54:24] Speaker 00:
Yeah.

[00:54:25] Speaker 06:
Competitive predators and things like that.

[00:54:27] Speaker 06:
And so that in fact, that is still a real issue for them.

[00:54:31] Speaker 00:
It is a real issue tied to climate change ameliorate.

[00:54:34] Speaker 06:
I know, but like climate change now, not climate change in 2039.

[00:54:39] Speaker 06:
No, no, no, no, no, your honor.

[00:54:41] Speaker 06:
That is only just because I thought the finding was that

[00:54:47] Speaker 06:
currently now at the time of the rule that there is already climate change underway and that causes carry on to decay and break down sooner so they may not have access to it.

[00:54:59] Speaker 06:
It causes other species to get in flies laying larvae which ruins it for them so that in fact there was

[00:55:09] Speaker 06:
a continued problem, maybe a different cause of the problem, but a continued serious problem about their ability to get access to the carry-on, which is absolutely vital to reproduction at the time of the rule.

[00:55:25] Speaker 00:
So the service did not make that finding, Your Honor.

[00:55:27] Speaker 00:
The service did acknowledge that climate change could affect carrying availability, but the service only found... It was affecting?

[00:55:35] Speaker 00:
No.

[00:55:36] Speaker 00:
I don't believe that they did.

[00:55:37] Speaker 00:
I think the service only found that.

[00:55:41] Speaker 06:
Certainly affecting them in the Red River or Red Rock, whatever that area is.

[00:55:46] Speaker 00:
So in the Red River area, the issue is that atmospheric temperatures are at a threshold that the beetle can't tolerate and that that may also be affecting soil moisture.

[00:55:56] Speaker 00:
It may also be affecting carrion, but the service found for all effects of climate change that they are only going to impact

[00:56:04] Speaker 00:
become a threat to the beetle once temperatures reach that approximately 95 degree Fahrenheit threshold for average summer daytime temperatures.

[00:56:12] Speaker 06:
The other question I have is, again, there's been some talk about five-year periods or whatever.

[00:56:18] Speaker 06:
It seems to me that once they hit, let's assume it doesn't happen until 2038, 39, they get to low and zero resiliency.

[00:56:29] Speaker 06:
That's not in danger of extinction.

[00:56:31] Speaker 06:
That is extincting.

[00:56:33] Speaker 06:
That is dying off.

[00:56:35] Speaker 06:
It seems to me the statutory language about in danger of extinction means protections have to kick in sooner than when you're at low to zero.

[00:56:51] Speaker 06:
Because at that point, they're dying.

[00:56:54] Speaker 06:
They don't have their habitat.

[00:56:55] Speaker 06:
Those temperatures are not sustainable.

[00:56:56] Speaker 06:
And there's nothing the Fish and Wildlife Service can do to change the temperature.

[00:57:03] Speaker 06:
And so why doesn't the, I get there's a foreseeable future, which I think is often talked about in the rule as the mid-century period, the 2040 to 2069.

[00:57:14] Speaker 06:
So why isn't the 2010 or 2020 to 2039, the near future, where we wanna ask, are they in danger of extinction within this time period?

[00:57:26] Speaker 06:
In danger of, not actually becoming extinct, but in danger of those conditions

[00:57:33] Speaker 06:
appearing.

[00:57:35] Speaker 06:
Is that what in danger of is itself a before extinction time period, correct?

[00:57:41] Speaker 00:
I agree with your honor.

[00:57:42] Speaker 06:
And extinction isn't a minute in time.

[00:57:43] Speaker 06:
It's a process.

[00:57:45] Speaker 06:
Yes.

[00:57:45] Speaker 06:
So we need to have a period before the process, correct?

[00:57:50] Speaker 06:
When they're in danger.

[00:57:50] Speaker 06:
That's what it was before when you listen to them as an extinct.

[00:57:54] Speaker 08:
Yes.

[00:57:54] Speaker 06:
Sorry, my words.

[00:57:56] Speaker 06:
When they were listed as endangered previously, it wasn't that they were dying off that very minute.

[00:58:02] Speaker 06:
It was that

[00:58:03] Speaker 06:
they were in a process or they were headed towards a process of becoming extinct.

[00:58:08] Speaker 06:
So what do you say, you, I mean, your client, what is the relevant window for in danger of extinction when your near term time period on these charts, not your mid century, your near term one shows them bottoming out

[00:58:33] Speaker 06:
in that time period?

[00:58:36] Speaker 00:
So I think the relevant time when they become in danger is when temperatures rise to a level at which it puts pressure on the beetle.

[00:58:47] Speaker 00:
Not to the level at which the beetle can no longer survive, but the near.

[00:58:52] Speaker 00:
So the service looked at two temperature thresholds.

[00:58:54] Speaker 00:
95 is sort of the, this is too much.

[00:58:57] Speaker 00:
And I think it's 93 to 94 is the, this is

[00:59:00] Speaker 00:
a point at which it puts pressure on the beetle.

[00:59:03] Speaker 00:
And so that's the point at which the endangerment happens, not when they're all gone.

[00:59:10] Speaker 00:
And the other thing I would point out is that there is a period of time over which, it's not like the temperatures hit 95 and all the beetles died the next day.

[00:59:21] Speaker 00:
Some will be more resilient, some will not.

[00:59:24] Speaker 00:
There will be a period during which- The composition isn't that

[00:59:30] Speaker 06:
They will only be threatened until we get to those 95 degree temperatures and the load is zero resiliency.

[00:59:37] Speaker 06:
They will be endangered.

[00:59:39] Speaker 06:
before that, because they're in danger when we see that train coming around the bend, right?

[00:59:45] Speaker 00:
So I don't think they're in danger when we see the train coming around the bend.

[00:59:48] Speaker 00:
I think they're endangered in the services view when temperatures... The train squashing over them?

[00:59:53] Speaker 00:
No, when you get to the point that it starts to put pressure on the beetle and what the service found... Where is the finding of when, not when we're going to be in this

[01:00:07] Speaker 06:
very dangerous death zone, which will be the actual extinction process.

[01:00:11] Speaker 06:
Where did they say that danger period, in danger of that happening will start?

[01:00:20] Speaker 00:
So the danger period is when the near threshold temperatures are reached and the findings- Right, when it's near threshold, because this chart, resiliency already has moderate and high emissions.

[01:00:31] Speaker 06:
I assume that includes climate change.

[01:00:33] Speaker 06:
Yes.

[01:00:34] Speaker 06:
And so that's,

[01:00:36] Speaker 06:
That's the death zone.

[01:00:38] Speaker 06:
Okay, so if where is the before we get to that so they're going to be in danger of extinction before we get to that or maybe when they're in the 90s when they're high 80s.

[01:00:49] Speaker 00:
I think the endanger of extinction threshold is the low resiliency categorization, not the zero resiliency.

[01:00:56] Speaker 06:
And that is what... But low resiliency is something that could happen.

[01:01:00] Speaker 06:
You just weren't sure which it would be.

[01:01:02] Speaker 06:
But even under your low resiliency, you've got low, low, low.

[01:01:04] Speaker 06:
I mean, in both of these columns, whether you've got two options here, the RCP 4.5 and 8.5, and in both of them, they are bottomed out to low, low, low and zero.

[01:01:14] Speaker 00:
Yes, by 2039, the service expects that in the Southern Plains resilience.

[01:01:19] Speaker 06:
So before 2039.

[01:01:20] Speaker 00:
By 2039, that's the best that the service, that I can quote for you.

[01:01:24] Speaker 06:
No later than is what you mean.

[01:01:26] Speaker 00:
No later than 2039, yes.

[01:01:27] Speaker 06:
Right, no later than 2039, we're in this bottom out period.

[01:01:31] Speaker 06:
Your position.

[01:01:32] Speaker 00:
And so the service had to exercise its judgment based on how it understood the climate modeling and how it understood the other threats of the beetle, to the beetle I should say, to determine whether

[01:01:43] Speaker 00:
there was enough time between 2021 when they found the condition of the beetle to be good and 2039 sort of the end point at which they think the condition of the beetle is likely to decline to the point at which it may be endangered.

[01:01:55] Speaker 06:
Wait, okay.

[01:01:57] Speaker 06:
I'm sorry.

[01:01:59] Speaker 06:
I thought you said that when they hit this low to zero,

[01:02:07] Speaker 06:
We're beyond in danger of extinction.

[01:02:08] Speaker 06:
We are dying off.

[01:02:09] Speaker 00:
No, that's incorrect, Your Honor.

[01:02:11] Speaker 00:
Low resiliency would be in danger of extinction.

[01:02:14] Speaker 00:
Even at zero resiliency, it is possible for a population at zero resiliency to persist for many, many years.

[01:02:21] Speaker 00:
It's just at that point that they are very susceptible to any shocks.

[01:02:25] Speaker 00:
Low resiliency would definitely not be a point at which we would necessarily expect the species to inevitably go extinct.

[01:02:30] Speaker 01:
One way to think about it, I mean, there's all kinds of

[01:02:33] Speaker 01:
metaphors that come to mind, the train coming around the bend.

[01:02:35] Speaker 01:
I mean, it depends on how far is the bend away, how big is the train.

[01:02:38] Speaker 01:
I mean, there's lots of things that can vary the gradations at which we view this.

[01:02:43] Speaker 01:
But one way to think about the statute is when a species is endangered as opposed to already extinct.

[01:02:51] Speaker 01:
And extinction may be a process.

[01:02:53] Speaker 01:
But at some point, it becomes inevitable that the species is going to die off.

[01:02:57] Speaker 01:
But at another point, it's that it's really, really on the precipice of

[01:03:03] Speaker 01:
getting to that zone of inevitability, even if it hasn't all the way gone down.

[01:03:06] Speaker 01:
But there's things we can do that can attempt to forestall that.

[01:03:11] Speaker 01:
And so the way I've kind of just thought about endangerment at a high level of generality is endangerment as opposed to extinction means that we better do some serious stuff because we've only got a limited amount of time.

[01:03:22] Speaker 01:
There's only certain limited things we can do.

[01:03:24] Speaker 01:
Let's try these things because they might work.

[01:03:26] Speaker 01:
Threatened means we're not quite at that point yet.

[01:03:29] Speaker 01:
We're somewhere interior to that.

[01:03:31] Speaker 01:
But endangerment still means that there are still measures that can be productively done with the hope that they can succeed.

[01:03:38] Speaker 01:
we're beyond hopelessness, even if it's yet to happen.

[01:03:41] Speaker 01:
So is your idea that if it's in, if we're in low in terms of resilience, that that's still a station at which things can be done, measures can be taken that can still hope to have constructive effects for

[01:03:58] Speaker 01:
guarding up the species so that it can survive, even though we're in a red flashing light warning zone about the path to extinction.

[01:04:09] Speaker 00:
Yes, Your Honor.

[01:04:09] Speaker 00:
I would agree with that.

[01:04:10] Speaker 00:
And I would say also we've been talking a lot about the Southern Plains and understandably so.

[01:04:14] Speaker 00:
But I think stepping back a little bit and talking about what can be done.

[01:04:19] Speaker 00:
So there isn't a lot that the service can do to maintain populations in the Southern Plains by the end of the century.

[01:04:26] Speaker 00:
Climate change is pretty inevitable.

[01:04:28] Speaker 00:
The service is doing things to try to preserve the species, mostly by trying to establish new populations in areas that are more climate resilient.

[01:04:36] Speaker 00:
And the service continues to do that since the down listing.

[01:04:39] Speaker 00:
That's not something that depends on the beetle being endangered, nor is it something that would be compelled by an endangerment finding.

[01:04:45] Speaker 00:
These are affirmative actions that the service takes to try to preserve the beetle.

[01:04:49] Speaker 06:
But extinction includes dying off in a significant portion of habitat, and that is the Southern Plains Analysis Area.

[01:04:58] Speaker 06:
And so if you are saying the service has already said, there is nothing we can do to stave this off in the Southern Plains Analysis Area, a significant portion of habitat, as you agreed, then you're already past the point where there's measures that can be taken

[01:05:19] Speaker 06:
The fact that you might plant some in Missouri or a few more in Block Island does not save you from this species being in danger of extinction because it's going to lose a significant portion of its habitat in the Southern Plains analysis area.

[01:05:35] Speaker 06:
So I think you just said that they are already in danger of extinction.

[01:05:39] Speaker 06:
No, because we don't... It may not happen for a few years, but we are at the point

[01:05:45] Speaker 06:
where they're dying, they're going to die off, and there's nothing we can do about it in that area.

[01:05:50] Speaker 00:
No, Your Honor, because we don't think that's how the statute works.

[01:05:52] Speaker 00:
We think that what matters is not the time of extinction, but the time of endangerment.

[01:05:57] Speaker 00:
And the services finding in the 2021 rule is that for at least 20 years, that there's not a risk of extinction to the beetle in the Southern Plains area.

[01:06:07] Speaker 00:
Necessarily, because of the way the definition of threatened is, there has to be some likelihood of future extinction.

[01:06:15] Speaker 06:
20 years from 2021.

[01:06:16] Speaker 06:
19 years.

[01:06:17] Speaker 06:
18 years.

[01:06:19] Speaker 06:
18 years.

[01:06:20] Speaker 00:
There's some ambiguities about whether it's 2039 or 2040, but putting that to the side.

[01:06:24] Speaker 06:
Let's say 2039, so I'm taking them at their word.

[01:06:27] Speaker 00:
Give us the end of 2039.

[01:06:28] Speaker 00:
Anyway, not important.

[01:06:31] Speaker 06:
It doesn't matter then.

[01:06:32] Speaker 06:
It doesn't matter.

[01:06:33] Speaker 06:
It doesn't matter in 20 years.

[01:06:34] Speaker 06:
And there's nothing that can be done.

[01:06:36] Speaker 06:
That's what you just said.

[01:06:36] Speaker 06:
We're going to have to plant them somewhere else.

[01:06:41] Speaker 00:
But the definition of endangered does not depend on the timing of the extinction.

[01:06:45] Speaker 00:
There can be endangered species now that may never go extinct.

[01:06:48] Speaker 00:
It depends on the threats that face the species now and the threats that may face the species in the future.

[01:06:54] Speaker 00:
And what the surface found is right.

[01:06:56] Speaker 06:
We don't just look at the species at large.

[01:06:58] Speaker 06:
We have to look at it in a significant portion of its habitat.

[01:07:01] Speaker 06:
So let's pretend the only place this thing exists is the Southern Plains right now.

[01:07:06] Speaker 00:
Yes, your honor.

[01:07:06] Speaker 00:
And what the service found was that until 2039 that the beetle in the Southern Plains is not more than 2039.

[01:07:15] Speaker 00:
That's not the beetle that by 2039, which is the word they used by that know that the temperatures in the Southern Plains will not be such that they put

[01:07:28] Speaker 00:
beetle at substantial risk of extinction or really at any risk of extinction because the beetle is thriving in the southern plains as of 2021 and the surface predicts that condition to endure for some period of time.

[01:07:41] Speaker 06:
What does thriving mean?

[01:07:42] Speaker 06:
Is it exploding in population?

[01:07:44] Speaker 00:
It's not exploding, it's healthy.

[01:07:46] Speaker 00:
It's maintaining.

[01:07:50] Speaker 00:
Because of the beetle's annual life cycle it's hard you know

[01:07:54] Speaker 00:
The data here only go back to the 80s.

[01:07:57] Speaker 00:
In some of these places, it doesn't even go back that far because the Beatles annual life cycle causes population to fluctuate.

[01:08:03] Speaker 05:
How many are born each year?

[01:08:06] Speaker 05:
That's how you would know thriving.

[01:08:07] Speaker 00:
Well, no, because it's going to go up and down.

[01:08:09] Speaker 00:
It's going to go up and down over time.

[01:08:11] Speaker 01:
It doesn't have to be thriving for you to.

[01:08:13] Speaker 00:
But yes, it doesn't have to be thriving.

[01:08:15] Speaker 00:
The point is, is that the service found that as of 2021,

[01:08:18] Speaker 00:
there was low risk of near term extinction in the southern plains as well as in any other analysis area.

[01:08:24] Speaker 00:
And that's what the definition of what.

[01:08:28] Speaker 00:
Near term is.

[01:08:31] Speaker 00:
Within the time at which the service can reevaluate the status of your term, the same as in danger of.

[01:08:40] Speaker 05:
is in danger.

[01:08:41] Speaker 00:
I think that's probably right, because the term that the service is used and was used in the polar bear litigation and the listing of the polar bears threatened, which this court upheld, was the idea was that the species had to be on the brink of extinction, meaning that there was some imminent threat that the species could become extinct in the near future.

[01:08:59] Speaker 00:
Again, it's going to depend a little bit on the species, right?

[01:09:01] Speaker 06:
Because I don't understand that, because you said things can be endangered even if they're

[01:09:06] Speaker 00:
Right, so let me give you an example, Your Honor.

[01:09:08] Speaker 00:
Let me give you an example.

[01:09:09] Speaker 00:
The North Atlantic right whale, extremely critically endangered.

[01:09:13] Speaker 00:
It could go extinct very soon.

[01:09:14] Speaker 00:
It may never go extinct.

[01:09:16] Speaker 00:
Because the threats facing that whale are different from the threats facing the beetle.

[01:09:21] Speaker 00:
There's no inevitability.

[01:09:22] Speaker 00:
to the extinction of the North Atlantic right whale.

[01:09:24] Speaker 00:
But there is a severe risk that if, again, to Judge Srinivasan's point, if measures aren't taken, that the beetle, excuse me, the whale could go extinct because of its critically low numbers.

[01:09:34] Speaker 00:
Every species is different.

[01:09:36] Speaker 06:
That's why these... So extinct within a year or two?

[01:09:38] Speaker 06:
This is what I'm trying to understand.

[01:09:39] Speaker 00:
Probably not within a year or two, but within a relatively short time.

[01:09:42] Speaker 00:
But again, it depends on this... But it depends on the species' life cycle, right?

[01:09:45] Speaker 00:
Because beetles are an annual species.

[01:09:48] Speaker 00:
You could have 20 generations in 20 years.

[01:09:51] Speaker 00:
The whale lives decades.

[01:09:52] Speaker 00:
But if you get to a point where there are only 100 non-reproductive whales left in the world, the species may persist for 100 years because the whale has long lived.

[01:10:02] Speaker 00:
That doesn't make it less in danger now.

[01:10:03] Speaker 00:
These things are necessary.

[01:10:06] Speaker 00:
And I understand it's frustrating, but they're necessarily species dependent.

[01:10:09] Speaker 06:
I really do appreciate that.

[01:10:10] Speaker 06:
It just seems to me the fact that it only lives for a year

[01:10:15] Speaker 06:
means that actually the risk of catastrophic loss is very close.

[01:10:21] Speaker 06:
You don't really have long time periods.

[01:10:23] Speaker 06:
You have longer time periods to study the whale.

[01:10:25] Speaker 06:
Because you figure it out, you're going to have whales still living for a while that you can then encourage reproduction, do whatever you need to do on that front.

[01:10:32] Speaker 06:
But if it were next summer, and you suddenly had these temperatures not once, not twice, but for a month, you could lose

[01:10:44] Speaker 06:
Almost the entire species in the southern plains analysis area because they get one shot at reproduction.

[01:10:49] Speaker 06:
And if they if they if a large percentage.

[01:10:53] Speaker 06:
Are wiped out and are unable to reproduce.

[01:10:56] Speaker 06:
That's it.

[01:10:57] Speaker 00:
So I think I Take, I take your honor's point, but I think it cuts both ways.

[01:11:01] Speaker 00:
Right.

[01:11:01] Speaker 00:
So yes, a catastrophic event in one year in an annual species like the beetle could be more catastrophic at the same time.

[01:11:07] Speaker 00:
the annual life cycle of the beetle gives it more opportunities to rebound from catastrophic events that are not... Because it has many generations.

[01:11:19] Speaker 05:
It doesn't have many generations.

[01:11:20] Speaker 00:
They're the only last year.

[01:11:22] Speaker 00:
So again, let me use my whale example to illustrate what I'm saying.

[01:11:25] Speaker 00:
If you kill off... I can't even believe I'm saying this.

[01:11:31] Speaker 00:
If a quarter of the right whale population were to die in a given year,

[01:11:36] Speaker 00:
it would take many years, decades perhaps, for that population to rebuild a percentage like that.

[01:11:42] Speaker 00:
If a quarter of the beetle population were to die off in a given year, because of the annual reproductive cycle, they could build that back up much more quickly.

[01:11:49] Speaker 00:
So it cuts both ways.

[01:11:50] Speaker 00:
Yes, on the one hand, it makes them more vulnerable to an annual catastrophic event in some ways, absolutely.

[01:11:57] Speaker 00:
But it also gives them more opportunities to bounce back from the, again,

[01:12:02] Speaker 00:
I don't, I'm not a scientist, Your Honor.

[01:12:04] Speaker 00:
I don't want to get over my skis.

[01:12:06] Speaker 00:
The point I'm trying to make is these are really hard calls that the service has to make based on fairly uncertain science.

[01:12:16] Speaker 00:
They know climate change is happening, but when these are, the when is a little, a little iffy.

[01:12:21] Speaker 00:
And that's why it, the court should defer as the Supreme court is, you know, held repeatedly.

[01:12:29] Speaker 00:
to the informed scientific expertise of the service, its policy judgment.

[01:12:34] Speaker 06:
Sorry, can I just follow up with one more?

[01:12:36] Speaker 06:
Yeah.

[01:12:36] Speaker 06:
One more question, because you talked about the sort of five-year study review cycle.

[01:12:44] Speaker 06:
How does that cycle work?

[01:12:45] Speaker 06:
Does that mean you start in year one?

[01:12:48] Speaker 06:
I guess you started it last year.

[01:12:49] Speaker 00:
I think the MPR went out last January.

[01:12:53] Speaker 06:
We have results from the study by 29 and then need a few more years to do a new rule.

[01:13:00] Speaker 06:
So is that a time period for doing this study?

[01:13:03] Speaker 06:
And imagine, hypothesize it, it says, yikes, we're going to be hitting that temperature mark in 2030.

[01:13:14] Speaker 06:
Is that time period allow you to both do the study and make the rulemaking in time to protect them from those results?

[01:13:21] Speaker 06:
Or is it study for five years, rulemaking, litigation, all that kind of stuff for another three or four years, at which point everything's too late?

[01:13:31] Speaker 06:
How much are you backing into that?

[01:13:33] Speaker 00:
So the study is not going to go on for five years.

[01:13:35] Speaker 00:
The service currently projects that the five-year review will be done in 2026.

[01:13:41] Speaker 00:
And the service could immediately propose a new rule.

[01:13:43] Speaker 00:
The other thing I point out is the service doesn't have to wait for the five-year review to be done if the service has information that would cause it to think that an up listing sooner is appropriate.

[01:13:52] Speaker 00:
For that matter, any person who has information that would suggest that the species should be listed could petition the service at any time and then the ESA statutory deadlines

[01:14:01] Speaker 00:
We're acting on that kick in.

[01:14:02] Speaker 06:
And the five-year period is both the study and response period, if one's warranted.

[01:14:06] Speaker 06:
Yes.

[01:14:07] Speaker 00:
It could be whatever.

[01:14:08] Speaker 00:
I think basically the service waits a few years and then does the study, which does not take five years to do.

[01:14:12] Speaker 00:
It takes a year to two years to do.

[01:14:15] Speaker 03:
Thank you.

[01:14:15] Speaker 03:
Sorry.

[01:14:16] Speaker 03:
So for the beetle, I think we have agreement that low to zero resiliency would be endangered.

[01:14:24] Speaker 00:
I think that that is very likely correct.

[01:14:26] Speaker 00:
Again, I'm not the service.

[01:14:27] Speaker 03:
So why is it not arbitrary and capricious, given that this record says

[01:14:31] Speaker 03:
that it will be low to zero by 2039, but we don't know when.

[01:14:37] Speaker 03:
It could be soon, it could be late, it could be anywhere in that range.

[01:14:42] Speaker 03:
And for the service to say that we don't see that endangerment now, just because right this minute, we're not there yet.

[01:14:53] Speaker 03:
without explaining why.

[01:14:55] Speaker 03:
Because what you're relying on is, today, we're moderate, high, and low.

[01:15:00] Speaker 03:
Sometime between now and 2039, we will be, for sure, endangered.

[01:15:09] Speaker 03:
And so without explaining why, why can the service just say, and I think the words are, we're not worried about this till the mid-century.

[01:15:21] Speaker 03:
We think that the impacts will be in the mid-century when that's not what the data supports.

[01:15:25] Speaker 03:
The data supports it will be sometime between now and 2039.

[01:15:28] Speaker 03:
But then there's a disconnect where the service says the impacts are going to be felt in the mid-century.

[01:15:34] Speaker 00:
So I think, Your Honor, that

[01:15:38] Speaker 00:
If you review the portion of the species status assessment on the climate modeling, it discusses how the modeling was done in 30 year averages.

[01:15:48] Speaker 00:
And while the service cannot predict the certainty a given year when those thresholds are going to be reached and reach consistently over time, the service does, I don't have a site, I apologize for this, say that what matters is not reaching those temperatures in some year, but reaching them consistently over time for putting the species

[01:16:05] Speaker 00:
at risk.

[01:16:06] Speaker 00:
But I think that the services analysis fairly read suggests that the service thinks that those temperatures are not going to be reached consistently till towards the end of that 30 year period time.

[01:16:17] Speaker 03:
I would really like to see where you have that in the record.

[01:16:20] Speaker 00:
And I think this court can uphold

[01:16:22] Speaker 00:
the services a less than ideal explanation as long as that can be fairly discerned from the record and and if the record does not reflect it's towards the end do you does that change your argument I don't think it doesn't change my argument if there's not a sentence in there that says towards the end I think that that means it could be anywhere no I don't think you can I don't think you can fairly read either the species status assessment or the preamble to the final rule

[01:16:45] Speaker 00:
and come away with the conclusion that the service thinks it can get anywhere.

[01:16:49] Speaker 01:
Can I ask this question?

[01:16:50] Speaker 01:
So for at least part of it, it's high.

[01:16:53] Speaker 01:
For the Arkansas River, it's high.

[01:16:56] Speaker 01:
Is there a scientific basis for thinking that in that area, it could be low next year, the year to the next year?

[01:17:02] Speaker 01:
I am not aware of such a basis.

[01:17:04] Speaker 01:
It's going to take some time.

[01:17:05] Speaker 01:
Yes.

[01:17:06] Speaker 01:
And the question is, we don't know exactly how much time.

[01:17:09] Speaker 01:
And then can you refresh my memory?

[01:17:11] Speaker 01:
I think you started to get it a second ago.

[01:17:14] Speaker 01:
The 30-year cycle, that, I mean, even that's, it just happens to be 30 years.

[01:17:20] Speaker 01:
So we happened to, it's 2039 for reasons that you're gonna, this is where my question is going.

[01:17:24] Speaker 01:
But even that one, there's just factors about the world that tell us that the best way to do the scientific analysis or the scientific analysis that exists, and you can answer that, takes it out to 2039, and then another 30-year cycle, and then another 30-year cycle.

[01:17:36] Speaker 01:
Even that is not, I take it that the service isn't controlling the time duration of the analysis.

[01:17:42] Speaker 01:
It's just that conditions tell you that that's the time period in which an analysis can be made.

[01:17:48] Speaker 01:
So I think what the- Why 2039, in other words.

[01:17:53] Speaker 01:
Why are these the ranges?

[01:17:54] Speaker 00:
Sure.

[01:17:55] Speaker 00:
So the service found that the modeling could only be accurate over relatively long timeframes and the service essentially thought to divide the 21st century into thirds or what's

[01:18:07] Speaker 00:
remaining of the 21st century into thirds, that 30 years was enough time to be reasonably competent in the outcomes of the modeling that was available.

[01:18:15] Speaker 00:
And so there's a degree of, I don't want to say the word arbitrary, but there's a degree of convenience in picking 30 because it divided the century into thirds.

[01:18:23] Speaker 00:
But it does need, the modeling did need to be done over a relatively long time scale for the service to

[01:18:29] Speaker 00:
have competence in the predictions that we've produced.

[01:18:32] Speaker 01:
And then I think, to pick up on the line of questions that Judge Pan had, it seems like the question is, if it's uncertain when in this time frame that was picked for the reasons you just outlined, the population is going to go from high in one area, moderate in another area.

[01:18:48] Speaker 01:
It's already low in the smallest.

[01:18:51] Speaker 01:
It's going to go too low.

[01:18:54] Speaker 01:
Does that mean it's necessarily arbitrary now to classify the species as only threatened and not endangered?

[01:19:03] Speaker 01:
If we know that it's going to happen by the end of the period, we don't know exactly when it's going to happen.

[01:19:10] Speaker 01:
Let's just suppose if there's a finding, if there's something in there that says it's more likely to happen towards the end of the period, all the better, because at that point, it's easier to do.

[01:19:19] Speaker 01:
But if there's not that, and you don't immediately know exactly where that would be, then where does that leave us in terms of whether it's arbitrary to say it's still only threatened and not endangered, even if we don't know exactly when we get to the point at which everybody would agree for present purposes it would be?

[01:19:38] Speaker 00:
Sure, so the service did point out in the preamble to the final rule that it believes that there will be adequate time between now and when temperatures rise sufficiently.

[01:19:48] Speaker 00:
beetle at risk to conduct another five-year review.

[01:19:50] Speaker 00:
And so I think if nothing else, that is a non-arbitrary reason for deciding that based on what the service knows about the beetle today and its status today in those areas, and its prediction that it has at least five years before temperatures are going to rise to a point to cause that risk,

[01:20:13] Speaker 00:
that that's a non-arbitrary reason for determining that it's threatened now.

[01:20:18] Speaker 00:
Ultimately, I think that's the issue.

[01:20:21] Speaker 00:
Did the service adequately explain why it thinks that the risk of extinction is only going to materialize in the future?

[01:20:28] Speaker 00:
And I think that that is sufficiently laid out in the

[01:20:36] Speaker 00:
in the preamble to the final rule.

[01:20:38] Speaker 00:
If I could, Your Honors, just talk for a second about remedy, unless there are other questions on the substance.

[01:20:45] Speaker 06:
Hold that.

[01:20:46] Speaker 01:
I think you're asking what he said.

[01:20:49] Speaker 06:
So the strangeness of the 30-year period here is that they started it at 2010, not the date of the rule.

[01:20:57] Speaker 06:
So by the date of the rule, you're already close to halfway through that time period.

[01:21:03] Speaker 06:
And if the findings are,

[01:21:06] Speaker 06:
by 2039, not that we'll have an issue, but under both scenarios, the lower and the higher scenario, majority of the Southern Plains analysis area is expected to be near or exceed the summer mean.

[01:21:25] Speaker 06:
So it's across time of 95 with potential to extirpate beetles from most or all of the Southern Plains population.

[01:21:36] Speaker 06:
That's the finding.

[01:21:37] Speaker 06:
What you've found is that by the end of this first time period, some time before the end of 2039, the service expects these temperatures to already have been reached, which has, for scientific reasons explained, potential to extirpate the American Bering beetle

[01:22:03] Speaker 06:
from the entire Southern Plains analysis area.

[01:22:06] Speaker 06:
That sounds to me like a finding that in this time period, which we're already halfway through, close to halfway through at the time of the rule, we expect this thing, you know, the end of this story in this short-term period is extirpation, or at least a substantial risk of extirpation,

[01:22:30] Speaker 06:
of the beetle in the entire, in 59% of its remaining habitat.

[01:22:35] Speaker 06:
Why is that not a finding?

[01:22:39] Speaker 06:
That they're in danger of extinction now on the service's own record.

[01:22:43] Speaker 06:
It did not find, even if you like your by 2039, which means to me no later than 2039, especially given this finding, they found

[01:22:55] Speaker 06:
there's a significant scientific risk or a substantial enough risk for us to acknowledge that it'll be extirpated in the southern plains analysis area by then.

[01:23:04] Speaker 06:
Why doesn't that mean they're in danger right now?

[01:23:06] Speaker 00:
So I don't think that's what the service found.

[01:23:09] Speaker 00:
I'm quoting.

[01:23:10] Speaker 00:
I know you're quoting, but let me explain what I think that that means, Your Honor.

[01:23:12] Speaker 00:
I think what that means is that by 2039 temperatures, the near threshold temperatures, those are temperatures at which the beetle would be expected to survive and be under stress.

[01:23:22] Speaker 00:
What the service found

[01:23:24] Speaker 06:
not near temperatures.

[01:23:27] Speaker 06:
The temperature in the Southern Plains is expected to be near or exceed maximum threshold temperatures, 95 degrees Fahrenheit.

[01:23:38] Speaker 00:
Right.

[01:23:39] Speaker 00:
It's the near that I'm talking about, Your Honor.

[01:23:41] Speaker 00:
And so if you look at this...

[01:23:43] Speaker 00:
If you look at the species status assessment, I would encourage you to... Near would be in danger of.

[01:23:49] Speaker 06:
Even under your theory, near would be in danger of.

[01:23:52] Speaker 00:
Yes, near would be in danger of.

[01:23:55] Speaker 00:
And what I've been trying, I think, to say is that I think the service...

[01:23:59] Speaker 00:
I think based on these findings, probably the service thinks the beetle will be endangered by 2039, but 2039 is still far in the future.

[01:24:06] Speaker 00:
And what the ESA says is... It's not that far in the future from 2021.

[01:24:10] Speaker 00:
I know, but it depends on who you are.

[01:24:14] Speaker 00:
If you're a beetle, you're a great, great, great, great, great, great grandchild.

[01:24:18] Speaker 06:
I don't think that's how we ask this question.

[01:24:20] Speaker 00:
Well, but the point is that you can't

[01:24:24] Speaker 00:
I think the vine from the language of the Endangered Species Act, when is too soon?

[01:24:30] Speaker 00:
I think that is a decision that's going to depend on every species, the threats that face that species.

[01:24:36] Speaker 03:
And I think that's a decision for science and policy judgment that the Congress... We're looking at the record here and the actual data about low to zero resiliency and the timeframe here.

[01:24:46] Speaker 03:
So I don't know that those general

[01:24:48] Speaker 03:
that you're making in this case, because we are looking at the record.

[01:24:52] Speaker 00:
Yes, and what the record says is the beetle is not in danger of extinction now, but will be by 2039 in the Southern Plains.

[01:24:59] Speaker 00:
And that is the definition of a threatened species.

[01:25:01] Speaker 00:
Not in danger now, but likely to be endangered in the foreseeable future.

[01:25:04] Speaker 03:
When was this moderate high-low finding made?

[01:25:06] Speaker 00:
2020.

[01:25:07] Speaker 00:
That's the species status assessment, so I think that's 2020.

[01:25:10] Speaker 06:
But the rule relied on it.

[01:25:14] Speaker 00:
Which the rule relied on in 2021, yeah.

[01:25:16] Speaker 06:
What matters for us?

[01:25:17] Speaker 00:
Yes, yes.

[01:25:19] Speaker 00:
So that ultimately, Your Honor, I think I will concede that at times the way the material is presented in the species status assessment is not crystal clear.

[01:25:32] Speaker 06:
That's actually in the final rule.

[01:25:34] Speaker 00:
And it's also in the final rule.

[01:25:35] Speaker 06:
So you're saying they didn't mean what they said?

[01:25:37] Speaker 00:
What I'm saying, no, what I'm saying is what they said, what I understand them to be saying, what I think the preamble to the final rule says,

[01:25:45] Speaker 00:
is that the beetle in the southern plains is not now in danger of extinction.

[01:25:49] Speaker 00:
It's not now on the brink of extinction, but likely will be by 2039 that that is far enough in the future.

[01:25:56] Speaker 00:
Extirpated is between 2040 and 2069.

[01:25:59] Speaker 00:
No, it will reach temperatures at which it may become extirpated.

[01:26:03] Speaker 00:
The actual extirpation is projected for the mid-century time frame.

[01:26:06] Speaker 00:
That is in the final.

[01:26:07] Speaker 05:
In danger of extinction when the extirpation starts or before the extirpation starts?

[01:26:13] Speaker 00:
I mean, they're in danger of extinction when temperatures rise to a level of extinction.

[01:26:20] Speaker 06:
Are you distinguishing extirpation and extinction?

[01:26:23] Speaker 00:
No.

[01:26:24] Speaker 06:
OK, so they've found a scientific risk of extirpation.

[01:26:31] Speaker 00:
When the risk of extirpation begins, that is when they are in danger, when the risk of extirpation begins.

[01:26:38] Speaker 00:
And the risk of extirpation begins

[01:26:40] Speaker 00:
when temperatures.

[01:26:41] Speaker 06:
The risk of is not when it's happening.

[01:26:45] Speaker 06:
Or not even when it's expected to happen.

[01:26:47] Speaker 06:
You're at risk of that.

[01:26:49] Speaker 00:
Yes, and that is what the service found is likely to happen by 2039.

[01:26:53] Speaker 00:
The service found that once temperatures reach 95 around 2039 by 2039, that then there will be a process which may last many, many years over which the beetle

[01:27:03] Speaker 00:
will decline and ultimately by approximately 2069 be extirpated.

[01:27:08] Speaker 00:
The service did not find that it is likely that the beetle will be extirpated by 2039.

[01:27:12] Speaker 06:
Oh, no, no, I absolutely agree.

[01:27:15] Speaker 06:
There's not a finding that they will all be gone by 2039.

[01:27:17] Speaker 06:
I thought in danger of extinction would kick in long before that.

[01:27:22] Speaker 00:
Well, I don't know about long before that.

[01:27:24] Speaker 00:
It kicks in.

[01:27:27] Speaker 00:
This case is hard because of the sort of on-off switch for this particular species.

[01:27:33] Speaker 00:
The beetle is fine until temperatures hit 94, 95 degrees.

[01:27:39] Speaker 00:
Up until that point, the beetle is not in danger of extinction.

[01:27:45] Speaker 00:
Once it hits a little below that, when it's getting close to that 95 degree threshold, that's when it's in danger of extinction.

[01:27:51] Speaker 00:
And that's when the service found will happen by 2039.

[01:27:55] Speaker 00:
And I think reading the record fairly, the service found that's going to happen near the end of the

[01:28:03] Speaker 00:
early century time period.

[01:28:05] Speaker 00:
And that is, and that is over a decade in the future.

[01:28:08] Speaker 06:
You think there are citations that they near the end more likely than, more likely 2038-39 to 2030?

[01:28:17] Speaker 00:
I will go back and look, Your Honor, I don't know if there are, but I don't think it's, it's hard to understand the, unless you think the service is just being

[01:28:27] Speaker 00:
irrational it's hard to understand the services reasoning any other way than by.

[01:28:32] Speaker 00:
Then by inferring from its explanation.

[01:28:39] Speaker 00:
that the temperature is not going to rise to that point.

[01:28:42] Speaker 06:
Also, I think you could say that, I know you wanted to get your remedy thing, but if given your sort of discussion about we got five years to study it again, pretty good inference from that, that this could be 2030 to 2020.

[01:28:53] Speaker 06:
And that isn't the final rule.

[01:28:56] Speaker 00:
Yeah, I don't have the page citation.

[01:28:57] Speaker 00:
It was in response to one of the comments, but the service specifically mentioned that there's enough time.

[01:29:01] Speaker 06:
Right, but that means this risk is much thinner.

[01:29:04] Speaker 06:
If you had, and I'm not saying this is here, I haven't seen this here, but if you had a window of time and you had a service finding that said the nature of the species, the nature of the threats it faces, at some point in this 20 or 30 year window, and we don't know where within that window, could be soon, could be middle, could be later, it will be at risk of extrication.

[01:29:34] Speaker 06:
If that were the services fund, and you're saying it's not, you're saying that if you read it as a whole, it goes further to the end.

[01:29:40] Speaker 06:
But if you actually had an agency go, it's going to happen when we just hear.

[01:29:44] Speaker 06:
Could they then still call it threatened, or would they at that point have to call it endangered?

[01:29:46] Speaker 00:
I think at that point, they probably would call it endangered, because the way the species- Could these be in the middle later?

[01:29:51] Speaker 00:
Yes, because it could be imminent.

[01:29:53] Speaker 00:
It doesn't mean it will happen soon.

[01:29:54] Speaker 00:
It means that there is a risk of it happening soon.

[01:29:57] Speaker 06:
Imminence is a test for endangered.

[01:30:01] Speaker 00:
Yes, so the word the service uses is on the brink, but I think imminence is a good way of thinking about it.

[01:30:06] Speaker 06:
They were finding it was imminent in 2008.

[01:30:11] Speaker 00:
In 2008, yes, because at the time the threats to the species were less well understood and they had these recently discovered populations.

[01:30:20] Speaker 00:
They knew the history of the decline of the beetle early in the 20th century.

[01:30:24] Speaker 06:
They were finding it was imminent.

[01:30:26] Speaker 00:
I'd have to go back and look at the 2008 assessment.

[01:30:29] Speaker 00:
But yes, the conclusion of the service made was that the endangered listing should be retained in 2008.

[01:30:34] Speaker 06:
Because it was imminent or on the brink?

[01:30:38] Speaker 00:
Yes, it would necessarily.

[01:30:39] Speaker 00:
I don't know what language they use, but necessarily because that's how the service understands it.

[01:30:45] Speaker 06:
If they use that type of language, something of imminence, whether it was on the brink or imminence or immediately

[01:30:55] Speaker 06:
Would you let the court know, and if they didn't, resonate?

[01:30:57] Speaker 06:
I'm trying to understand how much brinksmanship we're playing with species here.

[01:31:04] Speaker 06:
I'm sorry.

[01:31:04] Speaker 06:
It's a long delay from your end.

[01:31:06] Speaker 00:
No, no.

[01:31:06] Speaker 00:
I want to be as helpful to the court as I can, Your Honor.

[01:31:09] Speaker 01:
I have one factual question for you, if you can refresh my memory.

[01:31:13] Speaker 01:
You already reminded us that the Red River part of the Southern Plains is like a 15% share.

[01:31:20] Speaker 01:
As between Flint Hills and Arkansas River, do you remember what the breakdown is?

[01:31:25] Speaker 00:
I don't remember off the top of my head.

[01:31:27] Speaker 00:
Arkansas River is quite a bit smaller.

[01:31:29] Speaker 00:
I think it might be 20 some, but I don't know off the top of my head.

[01:31:34] Speaker 00:
OK, that's all.

[01:31:37] Speaker 00:
So on remedy, your honors, if the court finds that the downlisting decision was not adequately explained, we would ask that the rule be remanded without faketer.

[01:31:52] Speaker 00:
We think that the 4D rule more than adequately preserves protections for the beetle that would remain.

[01:31:57] Speaker 00:
in place in the interim while the rule were reconsidered.

[01:32:03] Speaker 00:
We think that reinstating the endangered listing would impose substantial costs on the service in terms of needing to process actions, particularly in the southern plains area, but throughout the area that would otherwise not require incidental take authorization from the service.

[01:32:20] Speaker 00:
We think that the service can, we think the science is there and the service can more than adequately explain why

[01:32:27] Speaker 00:
the threat is not until the future and given that the 40 rule adequately protects the beetle in the interim, we think for men without bigotry would be the most appropriate remedy here.

[01:32:35] Speaker 01:
Thank you, counsel.

[01:32:40] Speaker 01:
Thank you.

[01:32:42] Speaker 01:
That will more than the usual time since we went over quite a bit and got into the merits.

[01:32:47] Speaker 01:
You didn't have a chance that will give you five minutes for a rebuttal.

[01:32:53] Speaker 07:
Thank you, your honor.

[01:32:55] Speaker 01:
You're free to use as much or as little of it as you'd like.

[01:32:58] Speaker 07:
OK, thanks.

[01:32:59] Speaker 07:
In regards to this court's questions on the specific timeline of extinction here, the record states that there will be just a few remaining beetles

[01:33:12] Speaker 07:
In the Flint Hills analysis area at the end of 2039 and this is at JA 473 where the service states for the Red River analysis area climate change will make all habitats unsuitable by 2039 those effects may already be occurring.

[01:33:29] Speaker 07:
In the Arkansas River analysis area, the service determined that quote potential extra patient.

[01:33:35] Speaker 07:
for most or all of this analysis area is expected by 2039, that's at J475.

[01:33:40] Speaker 07:
And then for the Flint Hills analysis area, the service of term.

[01:33:45] Speaker 06:
Extrapation is expected by, does that mean the expectation, extrapation is expected to be completed by?

[01:33:51] Speaker 07:
Yes, that's what I would read it at the very conservative read.

[01:33:57] Speaker 07:
And then for the Flint Hills analysis area, the service said a major decline in abundance for most all of this analysis area is expected by 2039.

[01:34:05] Speaker 07:
32% of this analysis area is above threshold temperatures.

[01:34:11] Speaker 07:
Most of this remaining analysis area is at 29, or excuse me, 94 degrees near threshold in 2039.

[01:34:20] Speaker 07:
And that is from JA475.

[01:34:24] Speaker 07:
The service, as you said, determined the maximal threshold temperatures at 94 and 95 degrees Fahrenheit for southern plains, and that's at J468.

[01:34:35] Speaker 07:
So at the end of 2039, the entire southern plains analysis area will be at threshold temperatures in which beetles are no longer able to survive.

[01:34:48] Speaker 07:
Contrary to what we just heard from the government,

[01:34:52] Speaker 07:
American bearing beetles may be able to survive periodic or occasional years at maximum threshold at or above 95, but the average mean maximum temperature of 95 are not likely to support beetles.

[01:35:06] Speaker 07:
That's at J468.

[01:35:09] Speaker 07:
What we heard, so the government was arguing that right now the beetle is not extinct and they were citing to the record at 413, which was a chart where the service did not consider

[01:35:22] Speaker 07:
That was a chart where the service was just considering land use changes in isolation.

[01:35:31] Speaker 03:
So your friend on the other side said that there's someplace in the record where there was a finding or data that suggested that the bulk of the effects will be late in the

[01:35:43] Speaker 03:
in the time frame between now and twenty thirty nine I never saw that I've read a lot of this record are you aware of that being anywhere and that is not in the record your honor the record indicates that by the end of twenty nine there will be a few people what I say yeah thirty nine there will be very few Beatles and it keeps saying by twenty thirty nine by twenty thirty nine it never says late no it does not.

[01:36:06] Speaker 07:
But I think the more important part of this is that the service is conceding that the beetle will be extinct as soon as 2040.

[01:36:18] Speaker 07:
And there's no explanation for why extinction.

[01:36:22] Speaker 01:
No, I think what they're conceding is it'll be endangered, not extinct.

[01:36:27] Speaker 07:
The record states that the beetle will be extinct as soon as 2040.

[01:36:33] Speaker 01:
Will be?

[01:36:35] Speaker 01:
How does it say?

[01:36:35] Speaker 07:
So the record says it'll be very likely be extirpated by 2040, and that's at JA312.

[01:36:44] Speaker 07:
And yes, at the high emissions level, American- Wait, wait, wait, wait, wait.

[01:36:49] Speaker 01:
Sorry, sorry, sorry.

[01:36:49] Speaker 01:
Get to the page.

[01:36:50] Speaker 07:
All right.

[01:36:51] Speaker 06:
We're not as fast as this is.

[01:36:52] Speaker 01:
Where are you on the page?

[01:36:54] Speaker 07:
I do not have the record in front of me.

[01:36:57] Speaker 07:
JA135.

[01:36:58] Speaker 04:
You go on J312, that's the high emissions scenario underlined.

[01:37:03] Speaker 04:
Yes, it's the high emissions scenario.

[01:37:05] Speaker 07:
And the high emission scenario quote that's twenty forty twenty sixty nine.

[01:37:10] Speaker 07:
Right?

[01:37:10] Speaker 07:
So at so.

[01:37:16] Speaker 07:
The high emission scenario very closely represents current climate rate change and is a very realistic scenario.

[01:37:23] Speaker 07:
This is at J.A.

[01:37:24] Speaker 07:
four eight three.

[01:37:25] Speaker 01:
Wait, wait, wait.

[01:37:28] Speaker 01:
So should I not look at 312?

[01:37:29] Speaker 01:
I should look at 483.

[01:37:30] Speaker 07:
No, what I'm saying, I just was responding to one of your guys' comments that that's at the high emission scenario, which is a very realistic scenario.

[01:37:40] Speaker 07:
So my point is that the service at J132 concedes that.

[01:37:47] Speaker 07:
132 or 312?

[01:37:50] Speaker 07:
Sorry, 312 concedes that.

[01:37:55] Speaker 07:
The American bearing beetle will very likely be extirpated by 2040 to 2069.

[01:38:02] Speaker 07:
Elsewhere in the record, it indicates that by the end of 2029, there will just be a few lone survivors.

[01:38:08] Speaker 07:
And so by 2039.

[01:38:13] Speaker 07:
So the record that I was just reading, the JA

[01:38:21] Speaker 07:
4, 7, 3, J, 4, 7, 5, and J, 4, 7, 5, which indicates that only a few beetles will remain in the Flint Hills analysis area at the end of 2039.

[01:38:33] Speaker 03:
I'm sorry, is that at 4, 7, 3?

[01:38:36] Speaker 07:
This is a reading of 4, 7, 3 to 4, 7, 5.

[01:38:41] Speaker 07:
Would you be willing to send?

[01:38:45] Speaker 06:
Because we're hopping around here a lot and using a bloody or brutal time to send in these

[01:38:50] Speaker 06:
Citations in the letter.

[01:38:52] Speaker 06:
Absolutely, Your Honor.

[01:38:53] Speaker 06:
And then, obviously, the government can send in whatever it considers as most relevant.

[01:38:58] Speaker 06:
Yes, Your Honor.

[01:38:59] Speaker 06:
I have lots of tabs and highlights.

[01:39:01] Speaker 06:
Me, too.

[01:39:01] Speaker 06:
I'm not able to go from 312 to 43, like, to make those connections as fast as I can.

[01:39:06] Speaker 07:
OK.

[01:39:06] Speaker 07:
I think, though, what we did hear from the government is that they concede that if resiliency is low or zero at that time frame, that means endangerment.

[01:39:17] Speaker 06:
And that is what- It means very likely.

[01:39:19] Speaker 07:
Yeah, and that is what the service found and that's most clearly represented at J132.

[01:39:29] Speaker 07:
And so extinction at that time, in the time frame that the service found in the record, there is no explanation for why that

[01:39:44] Speaker 07:
scenario accurately fits in the threatened determination.

[01:39:49] Speaker 07:
The parties all agree that this species should be listed.

[01:39:52] Speaker 07:
And so the question is, should it be listed and threatened or should it be listed as endangered?

[01:39:58] Speaker 07:
It cannot be a threatened species because the species is not in danger of extinction in the foreseeable future.

[01:40:04] Speaker 07:
It is, excuse me, I misspoke.

[01:40:08] Speaker 07:
It cannot be a threatened species because the species is not likely to be endangered in the foreseeable future.

[01:40:15] Speaker 07:
But it can be an endangered species, because the species is in danger of extinction now.

[01:40:23] Speaker 01:
It's at least threatened.

[01:40:24] Speaker 01:
I mean, it's also threatened.

[01:40:25] Speaker 07:
It certainly can be threatened.

[01:40:26] Speaker 07:
It certainly can be threatened.

[01:40:28] Speaker 01:
Oh, no, no, no.

[01:40:29] Speaker 07:
It certainly cannot be threatened, because it is not in danger of extinction.

[01:40:33] Speaker 07:
Excuse me.

[01:40:35] Speaker 05:
You're saying we're not in a likelihood zone.

[01:40:38] Speaker 05:
We're in a certain zone.

[01:40:38] Speaker 07:
They are not likely to become an endangered species in the foreseeable future.

[01:40:44] Speaker 07:
it is likely to become an extinct species in the foreseeable future.

[01:40:48] Speaker 07:
And that factual scenario fits better in the endangered definition because it is in danger of extinction now.

[01:40:58] Speaker 06:
What if, I mean, there's lots of findings here and things aren't looking good for the 2030s.

[01:41:03] Speaker 06:
Correct.

[01:41:04] Speaker 06:
But until then, until early, even say early 2030s,

[01:41:12] Speaker 06:
We're not going to be at the temperatures.

[01:41:14] Speaker 06:
We're not going to have the dying off.

[01:41:17] Speaker 06:
Why is it unreasonable to consider it in this time frame to be threatened?

[01:41:24] Speaker 06:
Because these charts are the chart.

[01:41:27] Speaker 06:
But there's nothing in the threatened finding that says, and we refuse to reconsider this until 2039.

[01:41:33] Speaker 06:
I mean, they are going to look at it again during the 2020s.

[01:41:39] Speaker 06:
Why isn't that a reasonable approach?

[01:41:42] Speaker 07:
For a couple reasons, Your Honor.

[01:41:44] Speaker 07:
First, because that begs the question of how much decline is too much, or how much decline is enough to satisfy the services standard, where we have a situation where they know that the very same threat that has currently extirpated the most southern portion of this analysis area is the very same threat that will extirpate the entire southern phase analysis area as soon as 15 years from now.

[01:42:09] Speaker 07:
And second,

[01:42:11] Speaker 07:
Yeah, this notion that they can quickly return the American Bering beetle to an endangered species is illogical because of the reasons you suggest.

[01:42:22] Speaker 07:
It takes a long time.

[01:42:23] Speaker 07:
These processes, they announced the five-year review over a year ago.

[01:42:28] Speaker 07:
It was due a few months ago.

[01:42:30] Speaker 07:
Also, it would require a new round of public comment.

[01:42:37] Speaker 07:
It would require probably petitioning the service

[01:42:40] Speaker 07:
by an organization to list the beetle as threatened or as endangered.

[01:42:46] Speaker 07:
And so the suggestion that there can be a rapid reclassification is just severely misleading.

[01:42:55] Speaker 06:
So they looked again in 2008 and decided to continue listing as endangered.

[01:43:01] Speaker 06:
How long was the time period from?

[01:43:03] Speaker 06:
They must have done a five-year study then.

[01:43:04] Speaker 06:
They did a five-year study.

[01:43:06] Speaker 06:
What was the time period between announcing the study

[01:43:09] Speaker 06:
and then making the decision in 2008 to continue to list it as endangered.

[01:43:16] Speaker 06:
Was that more than five?

[01:43:17] Speaker 07:
The timeline between the 2005 study and the downlisting decision, is that what you're asking?

[01:43:24] Speaker 06:
Sorry.

[01:43:26] Speaker 06:
The 2005 study, I assume, led to their decision in 2008 not to downlist to keep it continued as endangered.

[01:43:32] Speaker 06:
Yeah.

[01:43:33] Speaker 06:
They went from three years of study to... No.

[01:43:35] Speaker 07:
And I misspoke when I said 2005.

[01:43:38] Speaker 07:
In 2008, they did a five-year review, and they just concluded that it should remain endangered.

[01:43:46] Speaker 05:
How long did that study take?

[01:43:48] Speaker 07:
I don't know how long that study took, Your Honor.

[01:43:51] Speaker 03:
Is that the last one?

[01:43:52] Speaker 03:
That was the last one, which- It's supposed to be a five-year review.

[01:43:55] Speaker 03:
Exactly.

[01:43:55] Speaker 03:
The next review was not until they started this when?

[01:44:00] Speaker 07:
They started this last year sometime.

[01:44:02] Speaker 07:
They announced- The most recent one.

[01:44:05] Speaker 01:
They had another one before this, right?

[01:44:07] Speaker 07:
No.

[01:44:08] Speaker 06:
The only other five- The status assessment that's in the record here was- In 2019, the status assessment.

[01:44:14] Speaker 02:
When did it start?

[01:44:23] Speaker 07:
I don't know the answer to that question, but it started with the petition from the oil and gas.

[01:44:29] Speaker 07:
I think it was 2016.

[01:44:30] Speaker 07:
It's in?

[01:44:32] Speaker 06:
It's five years between petition and final rule.

[01:44:39] Speaker 06:
Correct.

[01:44:39] Speaker 06:
It was.

[01:44:40] Speaker 06:
So I guess I'm back to my question then.

[01:44:42] Speaker 06:
And then?

[01:44:43] Speaker 06:
If they've got time to do another look and study, which they've already started last year, they've got that time to do it.

[01:44:53] Speaker 06:
and act before the late 20s.

[01:44:57] Speaker 06:
Why isn't that reasonable?

[01:44:59] Speaker 07:
It's not reasonable, Your Honor, because here we are in 2025 after years of the beetle fighting climate change.

[01:45:13] Speaker 07:
And so even if the service

[01:45:20] Speaker 07:
does determine that the beetle should be listed as endangered now.

[01:45:26] Speaker 07:
It could be significantly more years towards a final rule, at which time the beetle may be extinct in the southern plains by the time that happens.

[01:45:39] Speaker 07:
And all the more reason to list now

[01:45:44] Speaker 07:
And it's arbitrary, you know, if the service had, it was going to, is, is going to list the species in a five year review next year.

[01:45:52] Speaker 07:
Why not?

[01:45:54] Speaker 07:
Why not listen now?

[01:45:55] Speaker 07:
The record indicates that they're going to do the study to see.

[01:45:59] Speaker 06:
They're doing the study to see whether Yikes is climate change speeding up.

[01:46:04] Speaker 06:
Is this 2039?

[01:46:06] Speaker 06:
Is it way worse than that?

[01:46:07] Speaker 06:
It really is more like 2029 or 2032 or whatever the science shows.

[01:46:13] Speaker 06:
I mean, I know there's information out there about global warming, but I assume it's not going to jump from 2029 to 2029 or 2039 to 2026 when there's extirpation risk.

[01:46:26] Speaker 07:
No, based on the record here, it's likely that the five-year review will continue to say that the beetle is going to be extirpated in the near future.

[01:46:38] Speaker 07:
But this case right now in front of this court,

[01:46:41] Speaker 07:
The service cannot adequately explain why, right now, the beetle is not endangered of extinction.

[01:46:49] Speaker 07:
And it can't adequately explain why this scenario, extinction in the service's own foreseeable future time frame, fits in the definition of threatened.

[01:47:00] Speaker 06:
Do you agree or disagree what case law or rulemaking can you point us to that endanger

[01:47:09] Speaker 06:
of or imminent or immediate threat?

[01:47:14] Speaker 07:
There is no policy from the service that that is the definition of endangering.

[01:47:22] Speaker 06:
So your definition of endanger of cannot match likelihood in the foreseeable future because that's threatened.

[01:47:27] Speaker 06:
So endanger of has to be shorter term.

[01:47:30] Speaker 06:
Correct.

[01:47:31] Speaker 06:
What do you think the statute means when it says endanger of?

[01:47:35] Speaker 07:
It means foreseeable future.

[01:47:40] Speaker 07:
Even if we take the services definition on certainty rather than time frame.

[01:47:47] Speaker 06:
Well, it's just likelihood.

[01:47:50] Speaker 06:
Maybe it wouldn't happen.

[01:47:51] Speaker 06:
Right.

[01:47:52] Speaker 06:
And foreseeable future.

[01:47:53] Speaker 06:
And you're saying in danger of extinction is 30 in the foreseeable future.

[01:47:59] Speaker 07:
Yeah, we're saying both, Your Honor.

[01:48:01] Speaker 01:
No, how are you saying both?

[01:48:02] Speaker 01:
Because if both means temporal, then in the foreseeable future is already in the definition of threatened.

[01:48:09] Speaker 01:
So if you have the same words for endangered as you do for threatened, then time frame is not in it anymore.

[01:48:16] Speaker 01:
Because for both of them, it's in the foreseeable future.

[01:48:19] Speaker 01:
It seems like the distinction you're drawing is whether you're extinct or endangered.

[01:48:28] Speaker 01:
Is that the distinction you're drawing?

[01:48:31] Speaker 01:
likely to be.

[01:48:31] Speaker 06:
I thought you were doing a good decision between certainty and likelihood, which is threatened and certainty of extinction or endangered.

[01:48:39] Speaker 07:
Yes, your honor, there is a certainty element in in the definitions of endangered and threatened.

[01:48:47] Speaker 07:
And whereas here we have a situation where the service itself said that it is very likely in as soon as 15 years from now, the species will be extinct.

[01:48:59] Speaker 01:
But I just want to make sure I'm understood.

[01:49:01] Speaker 01:
I get the point that there's a difference in terms of likelihood of extinction.

[01:49:05] Speaker 01:
And I can't remember the exact words, but there's some gradation between threatened and endangered.

[01:49:10] Speaker 01:
But it didn't seem to me like you were drawing any distinction in terms of the time frame, because the words you used were in the foreseeable future, which is already the words in threat.

[01:49:18] Speaker 01:
So there's no difference between endangered and threatened with respect to that.

[01:49:21] Speaker 07:
No, Your Honor, there is a difference between.

[01:49:23] Speaker 01:
OK, what is that?

[01:49:23] Speaker 01:
If it's not, then endangered can't be in the foreseeable future, because that's already in threat.

[01:49:29] Speaker 07:
Well, endangered, the Congress didn't define endangered as will be extinct.

[01:49:40] Speaker 07:
Well, it didn't define endangered as extinction.

[01:49:43] Speaker 07:
And it didn't define endangered as will be extinct.

[01:49:47] Speaker 07:
It defined endangered as in danger of extinction.

[01:49:51] Speaker 07:
And so there is a forward-looking element of the endangered definition.

[01:49:59] Speaker 07:
It is less so than the threatened definition.

[01:50:05] Speaker 06:
But I think what's being asked here is that when you say it's less so than, I'm not sure which one you even said was less so, the threatened is less so than endangered, I guess.

[01:50:20] Speaker 06:
But there is a forward-looking time frame.

[01:50:23] Speaker 06:
There is a forward-looking time frame.

[01:50:24] Speaker 06:
What is that forward-looking time frame?

[01:50:27] Speaker 06:
They say eminence on the brink.

[01:50:28] Speaker 06:
What do you say?

[01:50:31] Speaker 07:
You're asking me to put a number of years or on endanger?

[01:50:35] Speaker 06:
You wanted us to write an opinion that says that it means what you want it to mean, but if you can't put it into words, I don't know how to write it.

[01:50:44] Speaker 07:
Yes, excuse me.

[01:50:45] Speaker 07:
I'm sorry I interrupted.

[01:50:46] Speaker 07:
What we're asking this court to find is that in no scenario

[01:50:52] Speaker 07:
Do these facts fit into the definition of threat?

[01:50:59] Speaker 07:
It can fit into the definition of endangered, and more accurately fits into that.

[01:51:04] Speaker 07:
But it cannot fit into the definition of threatened.

[01:51:07] Speaker 06:
Because?

[01:51:08] Speaker 07:
Because the species is going to be extinct very, very soon, in as soon as 15 years from now.

[01:51:19] Speaker 07:
In order to uphold the service's threatened determination here, it would require a rewriting of the definition of threatened from a species that is likely to become an endangered species in the foreseeable future to a species that is likely to become an extinct species in the foreseeable future.

[01:51:38] Speaker 07:
And that not only ignores the... They would say, no, we're saying it's likely to become

[01:51:47] Speaker 06:
on the brink of extinction in the foreseeable future.

[01:51:52] Speaker 06:
You're saying done, gone in the foreseeable future, 2039.

[01:51:57] Speaker 06:
They're saying no, likely to be in danger on the brink of extinction by 2039.

[01:52:04] Speaker 06:
That just seems like a scientific factual dispute.

[01:52:08] Speaker 07:
No, it's not, Your Honor.

[01:52:09] Speaker 07:
At the end of 2039, there's only a few left.

[01:52:16] Speaker 07:
If we uphold this service, if this court upholds the services rationale here, which is to list the species as threatened when it knows extinction will occur as soon as 2040, that entirely contradicts the purpose of the Endangered Species Act, which is longer needs protection.

[01:52:39] Speaker 07:
and to protect a species as endangered when there are just a few remaining population, or excuse me, few remaining individuals and entire populations contradicts the services duty to conserve and recover.

[01:52:53] Speaker 06:
Do you have any reason to believe that this beetle will be at that state before some point in the 2030s?

[01:53:03] Speaker 06:
Is this a fight about where in the 2030s decade?

[01:53:07] Speaker 07:
No, it's not, Your Honor.

[01:53:09] Speaker 07:
The relevant facts, I think, are that climate change has already extirpated the populations in Texas and Arkansas.

[01:53:21] Speaker 07:
It will continue to escalate north, resulting in the ultimate extirpation of the southern plains by 2040.

[01:53:34] Speaker 06:
And that is, you're not disputing that time.

[01:53:36] Speaker 03:
So I think we're referring to at 475 as a quote that says with climate change, a major decline in abundance in most or all of this analysis area is expected by 2039.

[01:53:48] Speaker 03:
Right.

[01:53:50] Speaker 03:
And then if you read, there's a major decline by 2039.

[01:53:53] Speaker 03:
So if there's a major decline by 2039, why is it not endangered now?

[01:53:59] Speaker 03:
Yes.

[01:54:00] Speaker 03:
I think that's a good question.

[01:54:03] Speaker 07:
And

[01:54:04] Speaker 07:
Exactly our point.

[01:54:05] Speaker 03:
Was it not in danger of extinction now?

[01:54:07] Speaker 07:
Yes.

[01:54:08] Speaker 07:
And it certainly can't be endangered in the foreseeable future, or likely to become one, because it is endangered now.

[01:54:16] Speaker 07:
And if this court continues to read that paragraph, it says, in 2039, the temperatures across it will be 94 to 95, which doesn't support

[01:54:33] Speaker 07:
And so yes, there is no, we do not dispute the services findings that extinction will likely happen between 2040 and 2039.

[01:54:44] Speaker 07:
The question is whether or not extinction in that time frame fits the definition of threatened.

[01:54:54] Speaker 07:
And it doesn't.

[01:54:55] Speaker 07:
But it does more accurately fit the definition of endangered.

[01:55:01] Speaker 03:
Oh, I see what you're saying.

[01:55:02] Speaker 03:
You're saying there will be actual extinction between 2039 and 2060.

[01:55:08] Speaker 03:
And so it can't be that they'll become threatened at that point.

[01:55:11] Speaker 03:
Yes.

[01:55:13] Speaker 03:
Or it can't become endangered at that point.

[01:55:15] Speaker 03:
Yes.

[01:55:15] Speaker 03:
Excuse me.

[01:55:15] Speaker 03:
Yes.

[01:55:17] Speaker 06:
OK.

[01:55:17] Speaker 06:
But you're not.

[01:55:17] Speaker 01:
But it could.

[01:55:19] Speaker 06:
Go ahead.

[01:55:19] Speaker 06:
You write it.

[01:55:20] Speaker ?:
No.

[01:55:22] Speaker 06:
You're the boss.

[01:55:24] Speaker 01:
It could become endangered by 2039 and not yet still be endangered.

[01:55:29] Speaker 01:
That doesn't include that.

[01:55:30] Speaker 07:
Wait.

[01:55:30] Speaker 07:
Can you repeat that?

[01:55:32] Speaker 01:
The fact that it might become or will become extinct between 2040 and 2069 doesn't necessarily mean that it's already endangered now.

[01:55:42] Speaker 07:
Yes, it does mean that.

[01:55:43] Speaker 07:
It does mean that.

[01:55:45] Speaker 07:
Because again, in addition to there being a certainty element, which is met here, there is a forward-looking element too.

[01:55:53] Speaker 01:
Sure.

[01:55:53] Speaker 01:
But of course, there's a forward-looking element.

[01:55:57] Speaker 01:
But does that mean that?

[01:56:00] Speaker 01:
Any time that a species we can predict is going to become extinct, that it's necessarily endangered now, no matter what.

[01:56:10] Speaker 07:
Any time that the service with certainty knows that extinction is going to happen in a very short foreseeable, excuse me, I'm not going to use the word foreseeable, in a very short timeframe, that means that

[01:56:26] Speaker 07:
It can't be a threat.

[01:56:28] Speaker 03:
That it's in danger now.

[01:56:30] Speaker 07:
Yes, and or it can't be a species that is likely to become one.

[01:56:36] Speaker 07:
Because extinction in 15 years from now is in danger of extinction now.

[01:56:45] Speaker 07:
And I see your honor shook your head.

[01:56:47] Speaker 01:
Well, it just it.

[01:56:50] Speaker 01:
For one thing, I think you keep saying that it can't be that it's likely to become extinct.

[01:56:55] Speaker 01:
And I think what you mean to say, it can't be that it's only likely.

[01:56:59] Speaker 07:
What I mean to say is, it can't be likely to become endangered.

[01:57:03] Speaker 07:
Because it is endangered now.

[01:57:06] Speaker 07:
Because it is going to be extinct very soon.

[01:57:09] Speaker 01:
What do you mean by very soon?

[01:57:11] Speaker 07:
As soon as 15 years from now.

[01:57:13] Speaker 01:
And where are you getting 15 years as very that?

[01:57:16] Speaker 01:
I don't know where very soon comes from, because I don't see that in the statute.

[01:57:18] Speaker 01:
But what do you consider to be very soon?

[01:57:23] Speaker 07:
15 years from now.

[01:57:25] Speaker 01:
You think that qualifies as very soon?

[01:57:27] Speaker 01:
15 years from now.

[01:57:28] Speaker 01:
That's just kind of your understanding of very soon.

[01:57:30] Speaker 01:
And that's the threshold you would use very soon.

[01:57:31] Speaker 06:
At a very minimum.

[01:57:33] Speaker 06:
You mean 15 years from 2025 or 2021?

[01:57:35] Speaker 07:
From right now.

[01:57:37] Speaker 07:
20 years from 2021.

[01:57:41] Speaker 06:
So 20 years is now very soon.

[01:57:43] Speaker 06:
For purposes of review, we're looking at 2021.

[01:57:48] Speaker 07:
OK, so let's step outside of this plain language argument and step entirely into the state farm territory.

[01:57:54] Speaker 07:
If we accept the service's definition of endangered and threatened, at a very minimum, the service did not explain why the service found

[01:58:11] Speaker 07:
that the beetle in the Southern Plains isn't endangered because the risk of extinction is in the near term low.

[01:58:19] Speaker 07:
There was never any explanation of why this scenario two decades from now is not near term.

[01:58:28] Speaker 07:
And under State Farm and the basic elements of APA, the service has to do that, and they didn't do that here.

[01:58:38] Speaker 07:
And also, the risk

[01:58:40] Speaker 07:
is not low.

[01:58:41] Speaker 07:
The record indicates that the risk is very likely that an extinction will occur in the near term.

[01:58:48] Speaker 07:
And so that is why this explanation and decision is arbitrary in addition to violating the plain language of the rule.

[01:59:01] Speaker 01:
OK.

[01:59:01] Speaker 01:
Thank you, counsel.

[01:59:02] Speaker 01:
Thank you to both counsel.

[01:59:03] Speaker 01:
We'll take this case under submission, and we'll wait for your follow-up letters.