[00:00:00] Speaker 00:
It's number 24 dash 578 friends of animals versus Martha Williams in her official capacity as principles, deputy director and United States Fish and Wildlife Service, an agency of the United States, the balance Mr. Anderson, pretty balance.

[00:00:16] Speaker 00:
Mr. Bernie pretty.

[00:00:17] Speaker 00:
I believe.

[00:00:19] Speaker 02:
Good morning, Your Honors.

[00:00:20] Speaker 02:
May it please the court, Christopher Anderson, for the Fish and Wildlife Service.

[00:00:23] Speaker 02:
I'd like to begin by addressing the timeliness of the appeal and then move to the merits.

[00:00:28] Speaker 02:
On timeliness, the July summary judgment order was not a final decision and did not start the appeal clock running.

[00:00:34] Speaker 02:
And I think the easiest way to see that it was not a final decision was that the district court had not finished with its proceedings on the remand.

[00:00:41] Speaker 02:
A decision is not final and appealable until the district court has finished its consideration of the case.

[00:00:46] Speaker 02:
That is the lesson of this court's decision in St.

[00:00:48] Speaker 02:
Mark's and the Supreme Court's decision in Shafer Brewing.

[00:00:52] Speaker 02:
Finally, Judge Contreras was not finished with the case when he entered the July order because he ordered the parties to confer and submit proposals on the remand and he contemplated entering a further order in the case.

[00:01:04] Speaker 02:
The July order was also not final because it did not finally determine the remedy.

[00:01:08] Speaker 02:
As we explained in our brief, the parameters and schedule of any remand order are material parts of the remedy, and they very much bear on an agency's decision regarding whether and what to appeal.

[00:01:18] Speaker 02:
Consistent?

[00:01:18] Speaker 01:
Can I ask you to just pivot to the merits and ask you, has the service ever argued in any other case that Section 4E does not allow it

[00:01:31] Speaker 01:
based on the similarity of appearance to apply 4E to a species already determined to be threatened under 4A and so treated as if it were in danger.

[00:01:48] Speaker 01:
Have you taken that position in another case?

[00:01:51] Speaker 02:
The service has not taken that position in another case, because this question has never arisen in a judicial case before, as far as I was able to tell through my research.

[00:02:01] Speaker 02:
But the service did in its regulation, which it promulgated in the early 70s, mid 70s, interpret section 4E to only apply to species which are not listed as endangered or threatened.

[00:02:12] Speaker 01:
You say that, but to me, actually reading, I may be missing something, which is why we have oral argument.

[00:02:18] Speaker 01:
The regulation actually seems even more amenable to being read the way plaintiffs read the statute, the way friends of animals read the statute, than the statute itself.

[00:02:33] Speaker 01:
I'm not sure how you get, because it doesn't have the same unlisted... Well, it does.

[00:02:40] Speaker 02:
50 CFR section 1750 says, whenever a species which is not endangered or threatened closely resembles an endangered or threatened species.

[00:02:49] Speaker 01:
Right.

[00:02:50] Speaker 01:
And given that the statute has sort of two circumstances, it can be a threatened species or it can be an endangered species.

[00:02:59] Speaker 01:
Why don't we understand that as speaking sort of separately to the two distinct

[00:03:05] Speaker 01:
levels that would otherwise be applicable.

[00:03:07] Speaker 01:
It just seems like at least the statute is ambiguous.

[00:03:13] Speaker 01:
It's basically saying it's giving authority.

[00:03:16] Speaker 01:
One way of reading it is it gives the regulation and the statute is giving authority to the service to treat any species as endangered, even though it is not listed as endangered.

[00:03:29] Speaker 01:
And it gives the service the authority to treat any species as threatened, even though it is not listed as threatened pursuant to 4a.

[00:03:38] Speaker 01:
So that's one way to read it, to say it's not listed as such.

[00:03:44] Speaker 01:
You could treat as endangered, even though it's not listed as such.

[00:03:47] Speaker 01:
Treat as threatened, even though it's not listed as such.

[00:03:50] Speaker 01:
What about the language of either the rule or the statute forecloses that reading?

[00:03:58] Speaker 02:
So I think that reading is most clearly foreclosed by the text of the statute in paragraphs A and C. So the rule doesn't really add, because there it says, unlisted.

[00:04:08] Speaker 01:
Right.

[00:04:08] Speaker 02:
The statute says unlisted.

[00:04:10] Speaker 02:
I think, grammatically speaking, I would say the clause begins, which is not endangered or threatened, means that a species must not be endangered or threatened.

[00:04:22] Speaker 02:
Is there some ambiguity there possibly?

[00:04:25] Speaker 02:
That is certainly the way the service has always understood that regulation is the way the service has applied the regulation consistently for the last 50 years.

[00:04:31] Speaker 02:
And also, I think that the regulation needs to be read and imperative.

[00:04:35] Speaker 04:
I thought that you would point to

[00:04:38] Speaker 04:
Subparagraph A, so E, A, which says a species which has been listed pursuant to such section and the overall structure of the act where this whole subparagraph E, similarity of appearance cases

[00:05:02] Speaker 04:
appears kind of after and assumes, the way I read it anyway, is that it assumes that you've already done the listing in the criteria for whether you're going to put something on one of the two lists, either the threatened list or the endangered list.

[00:05:20] Speaker 04:
That's described in subparagraph A.

[00:05:24] Speaker 04:
And then other procedural matters are in subparagraph B, including what to do if you're going to move things from one list to another.

[00:05:39] Speaker 04:
And then C describes the lists themselves and the significance of being on the list.

[00:05:47] Speaker 04:
And then D is the regulations that you're supposed to pass and enact for the things that are on the list.

[00:05:58] Speaker 04:
And then you get to E, which is, well, if you have some things that aren't on either list, and it speaks as if the lists are already existing, something that has been listed, you can treat it as if it is on a list.

[00:06:16] Speaker 04:
Yes.

[00:06:17] Speaker 04:
Regulations are defined the same way when they say endangered or threatened in the regulations.

[00:06:24] Speaker 04:
Those words are defined in the regulations to say things that have been designated on a list.

[00:06:32] Speaker 02:
Yes, Your Honor, that's how we read the statute.

[00:06:34] Speaker 02:
And I agree with Your Honor that the inapplicability of 4E to listed species is most clearly presented in paragraphs A and C of 4E.

[00:06:44] Speaker 02:
But to Your Honor's point, I think one way of thinking of 4E is it's an exception.

[00:06:47] Speaker 02:
It allows the service under certain circumstances to treat an unlisted species as endangered or threatened, even though it is not.

[00:06:56] Speaker 02:
right?

[00:06:57] Speaker 02:
So it doesn't have any applicability to a species that is already listed because the service has its authorities under 4D under section 9 to institute conservation measures for a species that's listed.

[00:07:09] Speaker 02:
It doesn't need 4E authority to do those things.

[00:07:13] Speaker 01:
Okay, I take your position to be that it's not really, nothing is lost by

[00:07:25] Speaker 01:
reading the statute to me not listed at all, and once something is listed pursuant to 4A as threatened, the reason nothing is gained by then considering the treated as to

[00:07:46] Speaker 01:
raise it to effectively treat it as endangered is because once you have a species listed as threatened, all the enforcement authority or the protective authority that accompanies an endangerment listing is already available to the secretary.

[00:08:07] Speaker 01:
Is that right?

[00:08:09] Speaker 02:
That is correct, Your Honor.

[00:08:10] Speaker 01:
That is our position, yes.

[00:08:12] Speaker 01:
And is that pursuant to 4D?

[00:08:16] Speaker 01:
Yes, Your Honor.

[00:08:17] Speaker 01:
But if I thought you say that a species that is treated as is not listed.

[00:08:24] Speaker 02:
A species that is treated as is not listed, that is correct.

[00:08:30] Speaker 01:
Right.

[00:08:30] Speaker 01:
Listed is pursuant to 4A.

[00:08:32] Speaker 01:
But if it's treated as pursuant to 4E, it's not

[00:08:37] Speaker 01:
a listed species.

[00:08:40] Speaker 01:
Correct.

[00:08:41] Speaker 01:
But then 4D, the authority in 4D is triggered by whenever any species is listed as a threatened species, the secretary may by regulation prohibit any act, blah, blah, blah, blah.

[00:08:56] Speaker 01:
But you're reading D to allow, right, because this was listed.

[00:09:01] Speaker 01:
Correct, correct, yes.

[00:09:02] Speaker 01:
Okay.

[00:09:04] Speaker 01:
Sorry about that.

[00:09:04] Speaker 01:
That's okay.

[00:09:09] Speaker 01:
And I guess I'm having a little bit of trouble given the discretion that the service has under the statute, even with respect to a species that is treated as endangered.

[00:09:28] Speaker 01:
Why does the service fight this interpretation, which is not requiring treatment as endangered, but only allowing it?

[00:09:39] Speaker 01:
What's the downside?

[00:09:40] Speaker 01:
I'm having a little trouble with both sides, given the discretion and the... Sure.

[00:09:45] Speaker 02:
Understandably so.

[00:09:46] Speaker 02:
So it creates an additional level of analysis that the service would have to perform in any case when it's considering the listing status of species that resemble each other.

[00:09:55] Speaker 02:
Remember, it's not just species like the macaws that the individual animals closely resemble each other.

[00:10:00] Speaker 02:
It's also in circumstances where animal parts resemble each other closely.

[00:10:05] Speaker 02:
And so the service would then be required to undertake this analysis in a lot of cases adding to its already voluminous workload and frankly the backlog of work that it has in processing listing determinations.

[00:10:18] Speaker 01:
But I guess that seems sort of circular to me because if they really do look alike, you're going to be wanting to consider that anyway, even if it's only at the threatened level.

[00:10:28] Speaker 01:
If you've got bones and feathers, you've got to address it.

[00:10:33] Speaker 01:
But you're just saying you don't have to have a rulemaking on that.

[00:10:35] Speaker 02:
You don't have to have a rulemaking on it.

[00:10:36] Speaker 02:
You don't have to address similarity separately.

[00:10:38] Speaker 02:
So in this case, the service certainly considered what measures were necessary to conserve both the northern subspecies and the northern distinct population segment, and considered what commerce measures in particular were necessary when it issued the 4D rule.

[00:10:54] Speaker 02:
But then it didn't then go on and do an additional layer of analysis to say, even though we think, based on our discretion under 4D, that that's sufficient to protect the species, should we also consider maybe treating the northern DPS as an endangered species as well?

[00:11:11] Speaker 02:
And that's what the district court required the service to do in this case.

[00:11:14] Speaker 01:
But there's already a rule being promulgated pursuant

[00:11:18] Speaker 01:
to 4D to say why you're not going all the way to the full suite of treated as in danger, right?

[00:11:29] Speaker 01:
Or as... Yes, yes.

[00:11:31] Speaker 01:
So there won't be a rule going out.

[00:11:32] Speaker 01:
So the sentence that says, you know, we don't think this... And this is also the reason why we're not

[00:11:40] Speaker 01:
doing a look-alike upgrade.

[00:11:44] Speaker 01:
I'm not sure I see the burden.

[00:11:47] Speaker 02:
It's perhaps not an extensive burden, Your Honor, but it is a marginal additional burden.

[00:11:51] Speaker 02:
And we also think it is important to clarify

[00:11:57] Speaker 02:
as Judge Wilkins was explaining, sort of the structure of the act and how it works, right?

[00:12:01] Speaker 02:
And so once the service is determined that a species should be listed as threatened, the service proceeds to consider a 4D rule.

[00:12:08] Speaker 02:
And that's the appropriate forum and framework for the species, I'm sorry, for the service to consider that species.

[00:12:16] Speaker 02:
And 4E is an additional step that

[00:12:20] Speaker 02:
the service applies to other species that do not meet the criteria for listing.

[00:12:24] Speaker 02:
And it helps to keep those categories distinct and avoid the confusion that sometimes occurs and has even occurred a little bit in the briefing in this case over whether a species treated under 4E is actually listed.

[00:12:38] Speaker 01:
It's just very odd to think that if in this case, for example,

[00:12:44] Speaker 01:
4A had not been applied to determine the listing status of the southern subspecies' northern DPS, that it would have been open to the service based on the acknowledged look-alike.

[00:13:04] Speaker 01:
characteristics to say, to treat it as either threatened or endangered.

[00:13:11] Speaker 01:
But just because of the sequencing of the consideration, I guess maybe this Judge Wilkins question has in it the answer to this, just because the service said, well, this is actually threatened under 4A, that

[00:13:26] Speaker 01:
you no longer have even the authority to consider just putting it as endangered and having a uniform treatment.

[00:13:35] Speaker 01:
Maybe that's easier to implement at the border.

[00:13:38] Speaker 01:
I just don't.

[00:13:40] Speaker 02:
I think the answer does lie in the order of operations, Your Honor, and the way that the service structures its listing determinations.

[00:13:49] Speaker 02:
But I would also say once a species is listed as threatened, Section 4D expressly gives the service the power to apply any conservation measures that are authorized by Section 9 to that species.

[00:14:03] Speaker 02:
The service loses no authority to protect the 4D species, the threatened species.

[00:14:09] Speaker 02:
We think that in protecting the threatened species, it will necessarily protect a similarly appearing endangered species, since they're facing the same threat.

[00:14:20] Speaker 02:
By definition, if this even comes into play.

[00:14:22] Speaker 01:
If a species is go with the friends of animals,

[00:14:30] Speaker 01:
analysis for a moment if their way of reading the statute is correct.

[00:14:34] Speaker 01:
Still a discretionary choice on the part of Fish and Wildlife.

[00:14:41] Speaker 01:
In the September 9th publication of the Federal Register in compliance with the remand to the agency, the Fish and Wildlife Service says in most cases treating a species as endangered under 4E

[00:14:59] Speaker 01:
where it is threatened, has been determined to be threatened under 4A would actually provide it with fewer protections because a species treated under 4B has either endangered or

[00:15:17] Speaker 01:
doesn't receive the critical habitat, protection, the recovery planning, and the consultation with federal agencies when they act in ways that could affect species that are triggered by a listing under 4A.

[00:15:33] Speaker 01:
And I found that both compelling and confusing, because presumably treatment as endangered

[00:15:43] Speaker 01:
under 4E could layer on top of listing as threatened under 4A, no?

[00:15:51] Speaker 01:
I mean, you would still have the consultation and habitat designation authorities that wouldn't go away because one is a listing and the other is treatment as.

[00:16:02] Speaker 02:
Right.

[00:16:02] Speaker 02:
So I think

[00:16:04] Speaker 02:
the service's federal registered notice needs to be understood as applying its interpretation, its current interpretation of 4E, that 4E wouldn't authorize that.

[00:16:14] Speaker 02:
And I think if this court were to hold that the service is wrong, I think the service would, I think that question is open as to whether those additional protections could be layered.

[00:16:24] Speaker 02:
In other words, whether a species could be listed as threatened, receive whatever protections were appropriate as a threatened species, and then also layer on some, to use your thought as well.

[00:16:34] Speaker 01:
I read this Federal Register notes quite explicitly to be explaining why the services interpretation is better and saying that under friends of animals interpretation, it would be problematic because a threatened species would have fewer protections.

[00:16:56] Speaker 01:
But I just don't, I don't see that.

[00:17:02] Speaker 02:
I think that certainly that result is not compelled by the text of the statute.

[00:17:07] Speaker 02:
I think what the service is referring to is its current practice for how it approaches 4e species.

[00:17:14] Speaker 02:
And if it were to continue with its current practice with 4e species, that would be the result.

[00:17:18] Speaker 02:
I think if it turns out the service is wrong about what 4e means and that the service can in fact treat a listed threatened species as endangered, then I think the service would probably look at

[00:17:30] Speaker 02:
those authorities and practices.

[00:17:31] Speaker 02:
Again, that's another reason why the service would prefer not to have that additional authority because the system as it's in place now has worked well for 50 years.

[00:17:42] Speaker 01:
And it also hasn't hasn't really raised this precise.

[00:17:47] Speaker 01:
It has not.

[00:17:48] Speaker 01:
That's correct.

[00:17:48] Speaker 01:
That's correct.

[00:17:49] Speaker 01:
So so just to help me out here, what is the difference between

[00:17:56] Speaker 01:
The practical difference in terms of the tools available or burdens imposed on the service between treating threatened 4A listing and an endangered 4E treated as.

[00:18:19] Speaker 02:
OK, so if a species is listed as threatened under 4A, the service may apply any of the conservation measures that automatically apply to a listed endangered species.

[00:18:31] Speaker 02:
And all of the other protections that apply to all listed species, such as the federal consultation requirements, apply to that species.

[00:18:40] Speaker 02:
If the service treats a species as endangered under 4E, then the service has discretion, and 4E is clear on this, that the Section 9 prohibitions don't automatically apply.

[00:18:53] Speaker 02:
It says the

[00:18:55] Speaker 02:
secretary, to the extent he deems advisable by regulation or commerce, can apply any of the protections that would apply to an endangered species.

[00:19:04] Speaker 02:
But that species, which is treated under 4E, because it's not a listed species, does not benefit from other provisions of the act, such as the federal consultation requirement, the critical habitat requirements, et cetera.

[00:19:17] Speaker 01:
They don't automatically benefit, but if they had an underlying 4A,

[00:19:24] Speaker 01:
designation is threatened, they would be able to, they may, the secretary may apply this.

[00:19:33] Speaker 02:
certainly is a plausible reading of the statute that I haven't taken a position on in this case, but yes.

[00:19:39] Speaker 01:
And you take the position that treated as is not a listing.

[00:19:45] Speaker 01:
Yes.

[00:19:45] Speaker 01:
Is there any kind of practical challenge?

[00:19:50] Speaker 01:
I mean, I assume the lists are actually lists and that if you're at the border, you have a list, you have the endangered list, you have the threatened list, you have instructions how to probably it's now all searchable wonderfully on computer.

[00:20:02] Speaker 01:
Is there any obstacle to implementing the scheme that I'm imagining?

[00:20:07] Speaker 01:
And I've been helpful in explaining your position on it, where you have a 4A threatened listing and a 4E endangered treated as.

[00:20:21] Speaker 01:
Is that like somehow a morass?

[00:20:25] Speaker 01:
What is the practical response to why that would be problematic?

[00:20:29] Speaker 02:
I don't know that it would characterize as a morass, your honor, but I think it would potentially create additional confusion because then you're going to have a circumstance in which you have species that are listed as threatened or endangered, species that are treated as threatened or endangered that don't ordinarily receive these additional protections.

[00:20:48] Speaker 02:
But some of them do because they're also listed as threatened or endangered.

[00:20:51] Speaker 02:
So instead of having

[00:20:53] Speaker 02:
You know, three categories.

[00:20:55] Speaker 02:
Now we have, what would that be?

[00:20:57] Speaker 02:
Five categories.

[00:20:58] Speaker 02:
The Endangered Species Act is already very complicated.

[00:21:01] Speaker 02:
It poses compliance difficulties for the public.

[00:21:05] Speaker 02:
It imposes compliance difficulties for other federal agencies that aren't expert in its requirements.

[00:21:11] Speaker 02:
And the simpler that the service can make things more effective, we think the implementation of the act will be.

[00:21:16] Speaker 01:
But you already basically have bespoke

[00:21:20] Speaker 01:
rules for every species unless you're just treating everything as the max, right?

[00:21:29] Speaker 02:
Yes, there are spoke rules for some species and there are default rules for other listed threatened species.

[00:21:38] Speaker 04:
What if we were to conclude that this argument specifically that the service

[00:21:48] Speaker 04:
has the authority to treat a threatened species as endangered under Section 4E.

[00:21:57] Speaker 04:
What if we conclude that that argument was not made by friends nor any other commenter during the rulemaking?

[00:22:07] Speaker 04:
Does that affect the jurisdiction of either the district court or us in hearing this case?

[00:22:17] Speaker 02:
It doesn't affect your jurisdiction, Your Honor.

[00:22:19] Speaker 02:
I mean, certainly the court could reverse on the ground that the issue wasn't presented to the agency in a timely manner.

[00:22:26] Speaker 02:
That's not an argument we raised in the district court.

[00:22:29] Speaker 02:
And for that reason, we thought it would be inappropriate to seek reversal on that ground in this court.

[00:22:35] Speaker 02:
But certainly, we think that the procedural default is potentially another reason why the decision should be reversed.

[00:22:43] Speaker 02:
But it goes to the merits, not the court's jurisdiction.

[00:22:48] Speaker 00:
All right, thank you.

[00:22:49] Speaker 00:
We'll give it a couple of minutes of the time.

[00:22:51] Speaker 00:
Mr. Hernandez.

[00:23:01] Speaker 03:
May it please the court.

[00:23:13] Speaker 03:
My name is Stephen Hernick, and I represent LA Friends of Animals.

[00:23:17] Speaker 03:
In this case, the agency is asking this court to bless a very strained interpretation of the statute that is both contrary to the plain language of the ESA and clearly contrary to the purpose of the ESA, which is to provide protections for threatened and endangered species.

[00:23:34] Speaker 03:
But for a number of reasons, this court should never even reach the merits of that question.

[00:23:40] Speaker 04:
I'd like to ask, where I left off with your friend on the other side,

[00:23:46] Speaker 04:
Where in the comments did friends of animals, your client, make this argument?

[00:23:53] Speaker 03:
Yeah, I can't point to anything in the record before this court, Your Honor, about that.

[00:23:58] Speaker 03:
But to answer your question, it's not an issue that the agency raised in the district court.

[00:24:04] Speaker 03:
It's not an argument that the agency raised before this court.

[00:24:09] Speaker 03:
It's not a jurisdictional hurdle to this court to the extent the agency ever wanted to raise that argument.

[00:24:17] Speaker 03:
it failed to do so, and therefore it waived that argument.

[00:24:21] Speaker 03:
And that is an argument, the administrative exhaustion, that can be waived.

[00:24:26] Speaker 03:
That's not a jurisdictional hurdle to this court's consideration.

[00:24:29] Speaker 04:
Okay.

[00:24:30] Speaker 04:
Let's go into the merits.

[00:24:33] Speaker 04:
The way that I read this statute overall, or basically 1531 at sec, is that

[00:24:45] Speaker 04:
List is a term of art.

[00:24:47] Speaker 04:
This is all about whether you make one of the two lists, the threatened list or the endangered list.

[00:24:56] Speaker 04:
And so whether you say not listed, unlisted, has not been listed, doesn't matter how you say it.

[00:25:06] Speaker 04:
It's all about like, are you on the list or not?

[00:25:11] Speaker 04:
And if you think about it that way,

[00:25:13] Speaker 04:
To me, this seems like an easy case.

[00:25:16] Speaker 04:
It's unambiguous that it goes against you because it says any species, but it says even though it is not listed, that phrase is modifying

[00:25:34] Speaker 04:
describing what you mean by any species, and then you go on to subparagraph A, and it says, a species that closely resembles in appearance a species which has been listed.

[00:25:52] Speaker 04:
And so, when you combine that with the fact

[00:25:56] Speaker 04:
that E appears to be dealing with a process that kind of happens after the listing because all of this stuff that's in the proceeding sections are leading up to the decision of listing and then what happens with promulgating regulations once something is listed, that none of that

[00:26:22] Speaker 04:
comports with the best reading of the statute being what you say that it is.

[00:26:29] Speaker 04:
So tell me why I'm wrong.

[00:26:31] Speaker 03:
Okay, respectfully, I do disagree, Your Honor.

[00:26:33] Speaker 03:
Our view and the District Court view is that Section E is a broad grant of discretion to the service in this case.

[00:26:43] Speaker 03:
Congress chose to use the phrase, any species.

[00:26:49] Speaker 03:
And in this case, the agency has not been able to come up with any plausible meaning of what that terminology could mean.

[00:26:59] Speaker 04:
Well, you look at it by reading the rest of the sentence.

[00:27:02] Speaker 03:
Sure, you have to read the rest.

[00:27:03] Speaker 04:
Even though it is not listed, it means any species.

[00:27:08] Speaker 04:
That's what it refers to, right?

[00:27:11] Speaker 03:
You know, the language is treat any species as an endangered species or threatened species, even though it is not listed pursuant to section four.

[00:27:19] Speaker 04:
It means species, right?

[00:27:21] Speaker 03:
It is referring to species, but even though language is not imposing a limiting condition on this, it's...

[00:27:30] Speaker 03:
the service wants to read the even though language wants to substitute only if for these words.

[00:27:38] Speaker 03:
And that's simply not what the plain meaning of that language is.

[00:27:42] Speaker 03:
And the service hasn't cited any authority when an even though clause has been read in a way such as this.

[00:27:52] Speaker 04:
But you read the rest of the sentence, it says, treat any species

[00:27:57] Speaker 04:
as an endangered or threatened species.

[00:28:00] Speaker 04:
So it is setting up a construct where you treat it as if it is something else, even though it is not one of those two things.

[00:28:09] Speaker 04:
That's what this means.

[00:28:13] Speaker 03:
Respectfully, I disagree, Your Honor.

[00:28:16] Speaker 03:
It's giving the service broad discretion to treat any species as endangered or threatened, even for those species that are not listed pursuant to Section 4A.

[00:28:30] Speaker 03:
And this is a unique provision of the ESA.

[00:28:34] Speaker 03:
It's the only provision in the entire statute that gives the service any discretion

[00:28:42] Speaker 03:
to list or treat the species as threatened or endangered that doesn't otherwise qualify under the enumerated factors under Section 4A.

[00:28:52] Speaker 03:
So it's not at all surprising.

[00:28:55] Speaker 03:
What does 4D do?

[00:28:57] Speaker 03:
4D gives

[00:28:59] Speaker 03:
the service discretion about what regulations should be applied to listed threatened species.

[00:29:08] Speaker 03:
So when the service lists an endangered species, the protective regulations of the Endangered Species Act automatically applies

[00:29:16] Speaker 03:
endangered species.

[00:29:17] Speaker 04:
And doesn't that give the Service the authority in its discretion to treat something listed as threatened under the same regulatory requirements as if it were listed as endangered?

[00:29:33] Speaker 03:
It absolutely does give the service that discretion, Your Honor, but often... Doesn't that then end your case?

[00:29:40] Speaker 03:
No, because oftentimes the service doesn't exercise that discretion, like it didn't.

[00:29:45] Speaker 04:
That means that this language is superfluous.

[00:29:49] Speaker 03:
I disagree that it's superfluous.

[00:29:50] Speaker 04:
What's the point of it if you can do the same thing under each?

[00:29:53] Speaker 03:
Sure, I'll explain why, Judge Wilkins.

[00:29:57] Speaker 03:
The language is not superfluous because section 4D is providing the protections.

[00:30:03] Speaker 03:
It's for the protection of the listed threatened species.

[00:30:07] Speaker 03:
4E is not intended to protect the lookalike species.

[00:30:13] Speaker 03:
It's pretended to protect.

[00:30:16] Speaker 03:
the already listed species from similar looking species being laundered, you know, from that endangered species being laundered as the similar looking species that has sewer protections.

[00:30:31] Speaker 03:
So there's a case and it's not a far-flung hypothetical because it is essentially the facts presented by this case, the service.

[00:30:40] Speaker 04:
Why couldn't under 4D

[00:30:43] Speaker 04:
the service say, we've only listed this as threatened, but because it's similar in appearance to this other species that we've listed as endangered and we are fearful that the disparity of the listing

[00:31:08] Speaker 04:
could put the endangered, the species listed as endangered in jeopardy, use that as a reason to apply 4D to regulate the threatened species as if it were endangered.

[00:31:26] Speaker 04:
What would keep the service from doing that?

[00:31:28] Speaker 03:
I'm not sure if that would be an appropriate use of 4D.

[00:31:33] Speaker 04:
What in 4D prohibits the service from doing that?

[00:31:38] Speaker 04:
4D is directed towards that particular species, so 4D doesn't give the service discretion to... It says, as he deems necessary and advisable for the conservation of such species and may, by regulation, prohibit with respect to any threatened species, any act prohibited

[00:32:03] Speaker 04:
under etc.

[00:32:04] Speaker 04:
etc.

[00:32:05] Speaker 04:
with respect to endangered species.

[00:32:08] Speaker 04:
So where would that prohibit or be arbitrary and capricious for the service to use a similarity of appearance analysis, so to speak, to do that?

[00:32:23] Speaker 03:
Well, the language such species, I think, is clearly applying to the listed threatened species in this case.

[00:32:31] Speaker 03:
So if the service determined that, in this case, the endangered northern subspecies of scarlet macaws, there was a real threat to that northern subspecies because of people potentially laundering it as the northern DPS.

[00:32:46] Speaker 03:
Even if that wasn't a threat to the northern DPS itself,

[00:32:50] Speaker 03:
and didn't warrant protective regulations for the northern DPS, for E, would allow the service to provide that greater protection to the northern subspecies.

[00:33:00] Speaker 01:
And they have that protection, they have the authority under their interpretation of the statute and the regulation to apply the additional protections associated with, required in the situation of an endangerment listing

[00:33:19] Speaker 01:
to the northern DPS of the southern subspecies that is listed only as threatened.

[00:33:29] Speaker 01:
They have the authority to do that.

[00:33:31] Speaker 01:
Your point is that they, sort of as a remedial matter, your point is that, I mean, what do you get from your interpretation other than more explanation and rulemaking?

[00:33:44] Speaker 01:
That's the only thing at stake here, right?

[00:33:48] Speaker 01:
is more explanation and rulemaking.

[00:33:50] Speaker 01:
There's not a difference between the authorities or obligations of the service under either interpretation.

[00:33:57] Speaker 03:
The service clearly has a great deal of discretion under these provisions of the ESA.

[00:34:05] Speaker 03:
What is at issue here is the agency pressing on this court to

[00:34:13] Speaker 03:
to read this language much more broadly and say that this provision actually forecloses, completely prohibits the service from applying it in this way.

[00:34:25] Speaker 01:
From treating the species listed as threatened under 4A as treating it as endangered, as a protective matter for the northern sub-species,

[00:34:41] Speaker 01:
But the only difference in the real world in terms of authority or obligation on the Fish and Wildlife Service is that where they've disavowed the authority to do that, you're saying, no, you have the authority to reach the same practical end in terms of protections through 4E treated as elevating

[00:35:10] Speaker 01:
4A threatened to 4E endangered.

[00:35:15] Speaker 01:
You have the authority to make that move.

[00:35:17] Speaker 01:
And the only thing that rides on that from your briefing is that if they have the authority to do that, they have to explain why they're not doing that.

[00:35:28] Speaker 03:
Perhaps it would lead to the same conclusion, Your Honor, but I don't think it's a foregone conclusion that it would.

[00:35:36] Speaker 03:
And the statute shouldn't be read to assume that the same conclusion would result in all instances.

[00:35:46] Speaker 01:
But if they're thinking about lookalikes, which they clearly were thinking about with McCaugh's because of how they dealt with the

[00:35:54] Speaker 01:
Southern DPS of the southern subspecies, which was treated as.

[00:36:00] Speaker 01:
They're thinking about lookalikes.

[00:36:03] Speaker 01:
They acknowledge that all of these different population segments are lookalikes.

[00:36:09] Speaker 01:
They're thinking about protecting habitat.

[00:36:11] Speaker 01:
They're thinking about agency action obligations.

[00:36:17] Speaker 01:
They're thinking about importation and commerce.

[00:36:22] Speaker 01:
And they're actually making

[00:36:24] Speaker 01:
species, a set of species specific rules about which protections apply.

[00:36:29] Speaker 01:
So they're doing all that in a, in a rulemaking that is more bespoke than the defaults treat everything as endangered.

[00:36:40] Speaker 01:
What more would you get?

[00:36:44] Speaker 01:
I'm not really following why they're fighting it and I'm not really following why you're fighting it given that the discretion to do the things that you want seems to be there even under their interpretation and the latitude not to do what they don't want seems almost completely to be available under your interpretation.

[00:37:03] Speaker 03:
I think the agency has kind of made clear in this case, it's not going to exercise this discretion.

[00:37:11] Speaker 01:
Because it's already explained in a nuanced way what it wants to do and could come out the same way.

[00:37:22] Speaker 03:
Potentially.

[00:37:23] Speaker 01:
Could.

[00:37:24] Speaker 01:
Could.

[00:37:24] Speaker 01:
Would have the authority to.

[00:37:26] Speaker 03:
Potentially.

[00:37:27] Speaker 01:
No, would have the authority to.

[00:37:28] Speaker 01:
Oh, they clearly.

[00:37:29] Speaker 01:
They would have the authority to, whether they would or not.

[00:37:32] Speaker 01:
And so that's what I'm trying to understand what's at stake from your perspective.

[00:37:36] Speaker 01:
If they were determined to come out in substance, in terms of the protections, the same way that they've come out under their reading, under your reading, they could, right?

[00:37:46] Speaker 01:
If they were determined to do that.

[00:37:48] Speaker 03:
They potentially could.

[00:37:50] Speaker 03:
I don't dispute that they have discretion.

[00:37:52] Speaker 01:
And the nudge that you think that your reading provides that their reading lacks is what?

[00:37:59] Speaker 03:
The service is pressing this interpretation that forever forecloses it from applying these protections.

[00:38:09] Speaker 01:
But no, that's not right.

[00:38:10] Speaker 01:
It has already the authority with respect to species listed as threatened.

[00:38:16] Speaker 03:
Under 4D.

[00:38:17] Speaker 01:
Under 4A.

[00:38:17] Speaker 01:
It has the authority under 4D to go all the way to pedal to the metal and do exactly what you would prefer.

[00:38:26] Speaker 03:
It certainly could.

[00:38:27] Speaker 01:
It has that authority.

[00:38:29] Speaker 03:
It does.

[00:38:30] Speaker 01:
And under your interpretation, it would have the authority to not use the lookalike power under 4E to treat a threatened species as endangered for purposes of protecting the northern subspecies.

[00:38:51] Speaker 01:
It would have the authority to choose not to do that.

[00:38:55] Speaker 01:
Right?

[00:38:57] Speaker 03:
Yes, the service would still have discretion to choose not to, but they would at least have the option to... But it doesn't get them anything different.

[00:39:07] Speaker 01:
Potentially it could because... Why does it get them that's different?

[00:39:11] Speaker 01:
potentially it could give them a different nudge.

[00:39:13] Speaker 01:
Like, I need clarity on it.

[00:39:14] Speaker 03:
Sure, because here, the northern... I'm not just frustrated with you.

[00:39:17] Speaker 01:
This is very complicated.

[00:39:19] Speaker 03:
I understand, Your Honor, because here, the northern subspecies is listed as endangered.

[00:39:24] Speaker 03:
The service believes it's endangered.

[00:39:25] Speaker 03:
The northern DPS is listed as threatened, has this protective regulation that the service has determined is appropriate for the protection of the northern DPS.

[00:39:37] Speaker 03:
But the service hasn't determined that, you know, whether that protective regulation is necessarily protective of the northern subspecies

[00:39:47] Speaker 01:
With respect to look-alike problems.

[00:39:49] Speaker 03:
To potential laundering issues.

[00:39:51] Speaker 03:
And there's just this, and you touched on it earlier Judge Piller, there's this just very strange, absurd result that happens where if a species is unlisted, the service does not believe that it requires protection under the Endangered Species Act.

[00:40:09] Speaker 03:
they can treat it as threatened, endangered pursuant to 4E.

[00:40:12] Speaker 03:
But if a species is listed as threatened, they're foreclosed from doing so.

[00:40:18] Speaker 03:
And that just makes no sense.

[00:40:20] Speaker 04:
Isn't the answer in 4A, can you just turn to 4A for a second?

[00:40:26] Speaker 04:
I don't know if you have the language in front of you.

[00:40:30] Speaker 04:
4A1D.

[00:40:36] Speaker 04:
These are the factors that are supposed to be considered in determining whether a species is listed as endangered or threatened.

[00:40:44] Speaker 04:
ND says the inadequacy of existing regulatory mechanisms.

[00:40:50] Speaker 04:
Couldn't the service say, ordinarily, we have five criteria that you need to meet before we list you as endangered?

[00:41:00] Speaker 04:
If you meet three of them, we list you as threatened.

[00:41:03] Speaker 04:
If you don't make three, then we don't list you at all.

[00:41:07] Speaker 04:
And they say, well, this one meets three, so ordinarily it would be threatened.

[00:41:16] Speaker 04:
But it looks a lot like, and we have this laundering problem, and we're worried about whether

[00:41:22] Speaker 04:
whether this listing is threatened would impact this other species that looks very similar that we are listing as endangered.

[00:41:37] Speaker 04:
So maybe we should just go ahead and list this other one as endangered also instead of as threatened.

[00:41:44] Speaker 04:
Why couldn't the service do that relying on 4A1D?

[00:41:51] Speaker 03:
Because 4A is very specific to the species that is being listed, and 4E is there for this other look-alike species.

[00:42:03] Speaker 04:
Looking back... So what does inadequacy of existing regulatory mechanisms mean?

[00:42:08] Speaker 03:
I think it...

[00:42:11] Speaker 03:
I think we're talking about the same thing, Your Honor.

[00:42:14] Speaker 03:
Clearly, it's the inadequacy of existing laws protecting this listed species under 4A.

[00:42:22] Speaker 03:
I don't read that provision as providing this authority to regulate trade in other species.

[00:42:30] Speaker 03:
That's what 4E does for these look-alike species.

[00:42:35] Speaker 01:
And isn't it also, if it's just because of lookalike, which could be described as existing regulatory mechanisms, although you've just said no, but the treatment as is generally more tailored.

[00:42:51] Speaker 01:
It has to do with commerce and importation.

[00:42:53] Speaker 01:
It doesn't carry with it.

[00:42:56] Speaker 01:
If I were the Fish and Wildlife Service and trying not to overburden

[00:43:00] Speaker 01:
the already taxed resources of the service, I wouldn't want to gratuitously do, I wouldn't want to use the 4A authority to deal with a lookalike problem because that carries a lot of burdens that have to do with actually the habitat and recovery of species that you wouldn't need for a species that is not itself suffering, but that's just a lookalike

[00:43:29] Speaker 01:
a kind of proxy.

[00:43:32] Speaker 01:
So you want to get the interpretation of 4E to do that work.

[00:43:37] Speaker 01:
Because it's like a leaner authority.

[00:43:40] Speaker 03:
It's consistent with the statute.

[00:43:42] Speaker 03:
And the service would kind of have to tie itself into knots to ignore 4E to try and do the same thing through 4A.

[00:43:51] Speaker 03:
I do think that would be vulnerable to challenge.

[00:43:54] Speaker 03:
I see IM over time.

[00:43:56] Speaker 03:
I do just want to briefly point the court's attention to something on the untimeliness argument.

[00:44:02] Speaker 03:
That's been briefed extensively.

[00:44:04] Speaker 03:
I didn't intend to get to it in detail.

[00:44:07] Speaker 03:
But on page seven of the joint appendix,

[00:44:12] Speaker 03:
It's the last docket entry from the district court.

[00:44:15] Speaker 03:
The district court denied the agency's motion for a stay of the explanation that provided pending appeal.

[00:44:23] Speaker 03:
In assessing why the agency was unlikely to succeed on the merits of this appeal, the court writes in here, and since then, plaintiff has developed additional arguments why the appeal should fail.

[00:44:36] Speaker 03:
The only additional arguments that we had raised in briefing before that district court were rightness and untimeliness.

[00:44:45] Speaker 03:
So the district court

[00:44:47] Speaker 03:
This clearly suggests the district court believes that its July order was the order that triggered the agency's time to appeal.

[00:44:57] Speaker 03:
If it didn't believe that, it wouldn't have written this sentence.

[00:45:02] Speaker 03:
And what the district court's intent was in issuing the July order with an accompanying 63-page memorandum opinion is controlling as far as whether

[00:45:13] Speaker 03:
That is the appropriate order that started the clock for the agency to appeal.

[00:45:18] Speaker 03:
Thank you.

[00:45:20] Speaker 03:
Thank you very much.

[00:45:21] Speaker 00:
Mr. Anderson, watch two minutes.

[00:45:30] Speaker 02:
Just briefly, Your Honors, I'm sorry.

[00:45:32] Speaker 02:
On Mr. Hernick's last point, I don't know what this report thinks of Friends' timeliness arguments.

[00:45:41] Speaker 02:
Acknowledging that it made arguments is not the same as endorsing those arguments.

[00:45:45] Speaker 02:
We did not brief the adequacy of those arguments in our motion to stay, so I think that that carries no weight.

[00:45:51] Speaker 02:
Other than that, I have nothing further unless Your Honors have additional questions.

[00:45:57] Speaker 01:
You may have already answered this button up.

[00:45:59] Speaker 01:
Does Section 4D allow the service to implement protective regulations for the sake of preventing the lookalike problem, or does only Section 4E do that?

[00:46:12] Speaker 02:
The service has historically interpreted Section 4D to allow it to accord a listed threatened species any of the Section 9 prohibitions for any rational reason.

[00:46:25] Speaker 02:
So the first sentence of 4D says that the secretary may prescribe measures that are necessary and appropriate.

[00:46:33] Speaker 02:
And the second sentence says, without qualification,

[00:46:37] Speaker 02:
that the secretary may apply any of the measures in section nine.

[00:46:41] Speaker 02:
This court upheld that determination under Chevron.

[00:46:43] Speaker 02:
I apologize, I don't have the citation in front of me.

[00:46:47] Speaker 01:
But if it's not a listed species, but a species that is going to be treated as.

[00:46:55] Speaker 01:
Right.

[00:46:55] Speaker 01:
So like the situation of the Southern DPS.

[00:47:02] Speaker 01:
Is there regulatory authority with respect to the southern subspecies and southern DPS to regulate under 4D?

[00:47:09] Speaker 02:
So once the southern species is treated as threatened, the service applies the 4D rule to that.

[00:47:18] Speaker 02:
That's how that works, yes.

[00:47:20] Speaker 01:
OK.

[00:47:21] Speaker 01:
So even though it's not listed?

[00:47:22] Speaker 02:
Even though it's not listed because the 4E says that the secretary may, as he deems advisable by regulation of commerce or taking, treat the species as threatened, the secretary reads that authority as allowing it to apply the 4D rule for the threatened species to the lookalike species.

[00:47:39] Speaker 04:
Is there a regulation that speaks to this or is this just the practice?

[00:47:46] Speaker 02:
It's a good question, Your Honor.

[00:47:47] Speaker 02:
I'm not sure.

[00:47:48] Speaker 02:
I will find that out and inform the court.

[00:47:53] Speaker 02:
All right.

[00:47:54] Speaker 02:
Thank you.

[00:47:55] Speaker 02:
Thank you.