the court my name is robert stockman here on behalf of the national marine fisheries service with me to counsel table is chris christie i'm on cell representing the center for biological diversity i intend to speak for twelve minutes to leave four minutes from this month cell and reserve four minutes for a i could switch to the service if that's ok it's our right that is a species likely to become in danger of extinction in the forseeable future throughout all or a significant portion of its range the best available science demonstrates that this is a species that percent of the population in cages in these activities in the bering sea which has a very productive prey base for this particular species is in focus as you go through this to me when one of the issues that i want to focus  on is what foreseeable future meets i think there's plenty of evidence in this record that the ice floe habitat is threatened and i think there's sufficient evidence that if that's threatened the species will be threatened but i'm i'm not clear as a legal matter what the foreseeable future means since the who we're talking about twenty one hundred here i take it yet yes your honor i think that is laid out in the  determination it is of course informed by the question of forseeable future but that isn't a term of that particular scientific meaning that this court has recognized that is fundamentally somewhat ambiguous term and that it will be determined on a case by case basis so the question here is whether i guess i'd let me ask the question differently how do we review the agency's determination that the year twenty one hundred is the foreseeable future i think you know we were cursed so foreseeable in that sense but but how do we review that determination well it's fundamentally a scientific judgment call about whether there's credible evidence supporting predicting out to that time period uncertainties and what science can reliably predict so first i want to emphasize we don't know what the agency would have determined in the scenario where analyzing the species under twenty fifty because that isn't what it found early as next decade there will be minimal nice years will start being harmful soon it is true that as time goes on there are more minimum ice years the ice extent withdrawals further and the problem becomes more extreme sure but in this case the agency determination was that the relevant year was twenty one hundred it did put it out to twenty one hundred and in some instances twenty nine five i'd like to explain so you have yes so maybe you could have done shorter but you didn't so we're not telling us why know the rationale that seems to be to difficult issue in this case can you predict so far into the future yes and i think the answer is the agency recognize the uncertainty does increase with time but as it's become more comfortable with the modeling it determined that it could predict accurately for sea ice in the bering sea accurately out to twenty one hundred and the explanation for the change in the shift to twenty one hundred appears in the record  s page ninety nine and they laid out several reasons for taking this different approach course first the trend is the same so in the past we would say well there's a divergence in how extreme the problem becomes but the reality is every model shows that temperatures continue to increase up to twenty one hundred and the sea ice continuing to decrease up to twenty one hundred so it's a bit odd to say here's a threat we know it gets worse and worse and worse but we're going to ignore it because it may get this much worse versus somewhat more worse second they approach second that the evidence shows that the observed rates are of guys who are actually greater than were originally predicted which suggests the models are conservative further we actually approached the models in a different way we started with the same slate of models that was used in the polar bear case which are from the i p c c but stand over land and wang who are two scientists worked on a way of adjusting the models and analyzing them in a different way where you prove them against the past thirty years of performance so in the polar bear case we looked at ten models and we used all of them to try to predict but here we said which of the models actually predicted sea ice in the bering se well over the past thirty years and there were six that in a much better job and then the other four which did a relatively poor job for that region of the ocean so when you call out the good the better models the six really good models you get less of a divergence and that's part of why whereas in the past we approach the modeling in one particular way and said well we diverges too much we're not sure when you start throwing out the models and saying well which ones are actually doing a good job of predicting the last thirty years you can get a much more clear vision of what will happen in the future specific can i ask you a question it's related to there's the agency designates the species as threatened but as you know the regulations designation have on the approaching parties in this case what does it put on them it has i as far as i know direct burdens upon and if i take regulation is eventually issued or something else is issued that's challenge yet i guess i'm asking a standing question that nobody raises in this case which i'm trying to figure out what's the harm well what's the harm to the opposing parties is merely from issuing the threatened designation when no regulation follows it is there are additional burdens put on well indirectly there will be the thing is that in the future now the federal government will consult when a federal agency asked to authorize something it will engage in section seven consultation about the bearded seal and will avoid jeopardizing the seal and that is a direct result of that with them and that is a consequence of listing is threatened so one upshot of that is that when for example if the oil and gas industry and it was a major reason we didn't issue the protective additional and then said you don't need government doesn't raise a standing issue and i don't i suspect there's enough stand here but the the harm from that from the your opponents from the i will sit down a moment to allow my colleague to speak but just to quickly finish up on the big question which is can you predict that far out i think it's clear that the agency is allowed to develop new modeling approaches and new ways of dealing with models we don't want to lock the agency into one approach and here although there's some disagreement about how precise the models are the majority of the peer reviewers all agree that these predictions handed were basically said what we did was reasonable it may not be perfect we can't know with precision exactly what will happen but it is a reasonable approach to analyzing the data we have available and what that approach shows is that if we do that if things continue under the existing regime of the current emissions this species will be in danger of extinction by twenty one hundred and i don't think that the agency had to ignore the ability to readjust how it deals with its models or stick to just became quite dire for the species it could be increased global warming faster than we thought it could be a new threat that we have aren't yet we do like for example ocean acidification which is one of the threats could become more dire than we thought a plaintive could always petition us to review it we could always initiate that on our own but similarly imagine a scenario where the emissions are greatly reduced through new regulatory mechanisms that don't exist today and the models then show different results party could always petition and say you built this around business as usual emissions the emissions that are likely in light of current regulatory mechanisms maybe you should take a second look and we would take a second look and consider does does the new evidence show a different result you wan good morning it may please the court christian montell for intervener center for biological diversity i just have to brief points i'd like to make how one is how the precautionary nature of the e s a required the service to less the bearded c l and the second is the importance safety net the listing provides first the best available science required the service to let spirit seals as threatened bearded seals are in trouble they depend on sea ice for giving birth for raising their pots for letter and precautionary nature of the act as this court has found many times the act is concerned with protecting the future of its species not merely the preservation of existing animals and as such requires a relian on the best available science reliance on the best available science rather than perfect certainty is in keeping with congressional tent that the agency take action before as species is conclusively headed toward extinction so there's still time to save it and that's what happened here here in the federal scientists looked at the available data and determined that bearded seals habitat would melt to such an extent that they no longer be able to perform several of their light functions and wo be able to survive as a result while scientists can't determine the precise magnitude of the population decline or exactly when sea ice will melt that beard as heels will no longer say right the size of the populations to choose me do we know the forest is threatened and there's evidence however that the bear or the who or the birds can migrate to the other part of a forest or other forest but they'll be in the same kind of habitat who's already evidence in this case with respect to the ability of  seals to survive in the absence of the ice floe habitat there and there is not your honor the agency looked at what would happen in the future and determined that the bearded seals would be forced to move to further areas that are in the north but that those areas wouldn't have enough food and would it again conflicts amongst the species and cause other problems such that it would compromise the seals ability to survive and that's exactly why they need the protections of the endangered species act now so that we can ensure their continued survival and their continued recovery bob using the water they do yes in shallow waters so they need also yes they need a certain amount of ice at a certain amount of time in there in all the right places with somebody generally two hundred meters and if i could just briefly i'm trying to send my second point which is how the endangered species act provides a substantial safety net too to let this species act it's been incredibly successful at saving species and that's because of the substantial protections it provides including the section seven consultation process that we've already heard about including the requirement that doesn't make critical habitat to ensure that the biologically important areas that the seals need most part protected it also requires that the agency implement a recovery plan for the species which is a road map as to how it can become recovered by the district court's decision stretch a period of these important protection science shows us that the seals need the protection of the e s i and agencies well supported decision to liste threatened was the right one under the law and should be reinstated thank you thank you council there's about two two and a half minutes for rebuttal we'll hear from the morning may it please the court my name is types and products and i represent the north slope earl arctic slope regional corporation northwest arctic borough man a regional corporation and the new pure community of york to explore they are the local governments alaska native regional corporations and regional tribal government in northern alaska they represent the alaska native people who are the original inhabitants of the arctic and who depend upon bearded seals for subsistence and cultural purposes also a council table today is just left boat representing the alaska oil and gas o c a ssion an american petroleum institute i intend to use sixty minutes of our time mr lubbock will follow us four minutes redmain representing the state of alaska is also here several different ways first the listing allows a national fisheries service to impose restrictions on subsistence harvest it also through section seven in the consultation process impose additional burdens on any activity that has a federal nexus so that would be cooperative management agreements for subsistence harvest research permits community development projects such as sea wall construction water treatment plants airports things about nature can i ask you what your burden is in this case and i hate i ask the government that let's assume that some scientists have testified based on their modeling that this species is threatened by the year twenty one hundred that seems a long way out but scientists have said they can foresee that point in the future what do you have to do and what do you have to convince us woodward what burden do you have to convince us that that was arbitrary and capricious how if there's evidence in the record that says that are you know we have to defer to the agency in the court will divert the agency but our point is that the evidence isn't in the record well i've been i must admit i'm not a scientist and i don't understand the modeling perfectly but i do understand if there's a model that there are models in the record from scientists weighing in another one who say we can our models can work this out in the year twenty one hundred and everybody agrees or is global warming or at least that there's warming up your client you're going to tell you no contest that correctly recognise and entered and over time the ice flows are going to become less available and they say we can we can look up to this point in time and that's the point in time when we think it will sort who will it will reach our tipping point if you will is judge fisher said so why don't why don't why don't we require to say there's credible evidence to for the agency to reach that conclusion i think it's helpful to look to look at the listing based on it's kind of component pieces so it's a list of species first the agency has to demonstrate that there is a threat and the threats are laid out in section four once they do that they have to demonstrate that that threat will have an effect on the species and that's informed by this court's decision defenders of wildlife also district court in c b d versus go once they establish that there isn't a fact they have to establish that that effect will have such a magnitude that the species is likely to become in danger of extinction the persil future so that demonstrates that the effect must be so great that population will centrally become on the brink of extinction it at some point in the foreseeable future right which at this in this case would be the end of the century so so is i can see the evidence in this case nobody disputes that that there's dead for whatever reason warming will will diminish the existing i there is some evidence that this confluence of things will threaten the species with exist with extinction by the year twenty one hundred what am i missing i think you're missing is that the agency has just identified the threat which is the projected loss of sea ice they haven't identified any connection to what actually that would mean for the population of the species and how significant any effect would be regarding magnitude which would go to the portion of that habitat equates to extinction and we know based on the record that's why i asked that's why i asked the second council about this issue they also have evidence that that did the fewer ice flows that are available if you will farther to the north will mean that the species will be competing for space and food in a very limited area and that will and that will cause you know that will cause difficulties so i'm trying to temp tell me where  think the precise deficiency in the agency's record exists just because they assume that it's somehow self evident that a loss of habitat equates to extinction and we know for some isola that species like polar bear the rate of sea ice decline has already had an effect here the agencies acknowledge that there is no adverse effect on beard seal despite years of sea ice decline that we've already observed in fact a species is known to be currently abundant life be distributed thr range and healthy so that demonstrate there is not a direct correlation between ice loss and species survival we also know that the species has survived for eleven million years and that there have been numerous widespread pro warming occurred so again it demonstrates there is not a direct correlation between sea ice loss and bearded seal survival what the agency needed to do was look at sea ice decline and make a reliable prediction about what the effect would be to the species and make a reliable prediction of what the magnitude would that be to determine whether it's at the extinction threshold and i think there's nothing in the administrative record demonstrating how when or to what extent that effect would be or whether it's even forseeable in for example the record specifically states that nist has no statistically rigorous imprints about how beards he will respond to habitat loss loss over time there's a complete lack of quantitative decline to affect on the population through various studies and then link the effect on the polar bear to status based on population modeling here all we have is information on c even that it's only in a portion of the range which is either think they can take any action until they've completed the studies or somebody completed these kinds of studies and i don't think the best available science obligation gives them the authority to act without data to support the conclusions so we recognise that they have data on the threat component but they have centrally acknowledged throughout the administrative record that they lack adequate data to make reliable predictions about the other two components the effect in the magnitude so what data do in your from your perspective do they need like what kind of study do they need why would say that the polar bear list usage was informative if they had studies demonstrating how a loss of sea ice would actually affect the bear survival and reproduction and what that would mean and then they had population modeling studies that looked at the future population at different increments out a hundred years and so based on that evidence the court upheld the listing how certain are we about the size of the population today there is some uncertainty  but the best of the best estimate that we have is one hundred fifty five thousand animals in the branch a distant population i think they're like a million worldwide but those are not the population that we're specifically talking about here  and so turning to the for the magnitude piece one court has said that the phrase in danger of extinction equates to on the brink of extinction so to determine whether a species will get to that point the agency needs to be able to do to assess the magnitude of any impact what future population trends would be and what the future status of the species would be and again the administrative record doesn't contain any of that information on the contrary it says that the agency couldn't make or that it was too uncertain the agency simply pointed to the biological review teams demographic risk assessment to fill the gap but that is just the essential a numerical ranking of scientists predictions of what may happen in the present and future based on certain risks to components of the species like abundance diversity productivity and spatial structure there's nothing in that explanation to demonstrate or support or provide any data regarding the accuracy or reliability of the future risks it's just a number that number doesn't explain what the likelihood of occurrence of the risk would be what the magnitude of the risk would be there is nothing connecting those numbers to the e turning to my second point which was the forseeable future report before you leave that point and one hand you don't contest that the habitat is threatened if the species is not threatened you can test where the the species yes but in a case where the habitat is sea ice and and you don't contest that the habitat is being threatened is not a national natural inference and the inside i was trying to contrast it with diminishing the size of a forest where the bird or the bear could just move to the rest of the forest but here what we're really saying is that habitat itself is going to be so constrained that there will be an inability to survive see chuck cheesy music knowledge is that that habitat is going to be there in sufficient quantities up to mid century sometime after mid century to the end of the century there's expected to be a decline or loss of just the bering sea component and it's recognize that it's models likely understate the timing of it so it may be problematic you know years or decades before it actually occurs but the end result is we're really only talking about a potential loss or a predicted loss of the so your view position is they haven't demonstrated that the population would simply move to the other portions and continue perhaps in the lesser numbers but not threatened with extinction that's exactly right i mean these are highly migratory species that are known to move throughout the basin following ice so the agency hasn't demonstrated that since we know basin in most years they will have habitat remaining whether they're at that extinction threshold point how does the extinction threshold put gifts and i know you want to move to that next but how does it get established well it's i mean it's not a defined term in the endangered species act itself right but does require that that the species be threatened with extinction in the access to be listed as threatened it has to be likely to become endangered of extinction within the forseeable future so i think each species is going to have a different point that when it becomes in danger of extinction you know here they said that they lack sufficient data to make that determination so we don't really know what the threshold is for this species they just assume that based on a loss of habitat it's going to get there but there's no scientific information kind of connecting  so going to the forseeable future and the change in duration in the two previous listing decisions that the agency made for seals the written seal in two thousand and eight in the spotted seal in two thousand tatton the agency looked at climate projections from the c the same ones that are underlying this decision and so they're too unreliable and too variable for use beyond mid century so they cut the forseeable future off at twenty fifty here in the beard til decision they're relying on the same time or projections but they change course and say the forseeable future now goes to the end of the century but they give a reason for changing course that does not make their decision or rhetorical i don't mean it it gives you an argument but they they say well our scientists are rule that study and that explanation isn't given for the change of procedural future that's emphasized in the reply brief so post hoc if you look at it from a substantive perspective they also fail to mention that in the two thousand and ten spotted fuel study the agency also relied on the wagon over the study in fact very heavily that's how they made their modeling projections to support the two thousand and ten decision and even then based on the application of land in overland they still concluded that the projections were too variable for government century so raising that study now doesn't address the underlying contradiction regarding the adequacy of the modeling for forseeable future and that i wanted to point out th future period is important because it determines the window of time in which the agency will make a decision regarding whether to lift the species and as the solicitor of the interiors pointed out the agency needs to make reliable predictions about the threat and reliable predictions about the effect so that change is very significant here because it affects i think because you notice the window by which we have to understand the status of the species going forward so i'd just like to touch on the other explanations that they made for changing i think they mention that it's a more threat specific approach but again that explanation doesn't address the change it's essentially meaningless because we're dealing with the same threat the same underlying d in the same area it may explain changes based on different threats but we're dealing with the same one so it doesn't address the variability and before members also mentioned that warning local warming will continue throughout the century and the trend is clear in unit directional they made these exact same observations in the written seal decision on the spot it's your decision so these aren't new discoveries or new science they've known this for years  and then finally i think in their reply brief they mention the douglas two thousand and ten study mentioning that the suggestion that climate projections are conservative that maybe it may be happening sooner that explanation is also recognized in this particular decision so again they've added no new explanation or any acknowledgement or addressing that underlying contradiction between the reliability of modeling projections from two thousand and fifty to the end of the century they just reiterate observations they've made in the past but already  exists can we draw a natural reference where we might not be able to drive for some other species so the answer that again is no and here's a couple of things that we know first of all climate changes are affecting ice ice recession occurring the polar bear is an example of a species where we see the effects are ready and so we know that it is threatened by we don't see any of that the record is clear that there's no evidence currently of any effect from sea ice recession which has been going on for some time in which a substantial no effect whatsoever on the health survival reproductivity of the very few second there details have been around for eleven million years and his name says acknowledge two periods of global warming and global freezing both rapid and slow and so that species has persisted over a long period of time through periods of change and so it is not inherent in fact that it's in it's obvious that it has been resilient to changes in in the sea ice regime over a period of time if it had to be to have survived a third mr stockman started out from the proposition that there is evidence that seventy percent of the  well and nurse in the bering sea at certain times of year and that their models predict by the end of the century that that area will be ice free let's break that down and mean that thirty percent of the population is already well being in nursing in these other areas and that's fifty five thousand seals or fifty thousand seals and there's no evidence that those seals are unhealthy or they're having any reproductive problems non self argument which is what i'd like you to respond to is that because the natural tendency of the species is to migrate as the ice in the bering sea becomes unsustainable this population of one hundred fifty five thousand or so will migrate to where this where the other thirty percent live and therefore they were all be fighting for the same ice floes fish habitat etc and that therefore there will be this effect and if this was a small area that would be a is a very very large area and so if we were talking about vernal pools or some other you know that's one end of the spectrum that would be one thing but this is not a constrained area and the record does not show that there will be insufficient habitat for them it merely shows that they will have to move and already a third of the population is using that area this is the difference between habitat preference and something and if you have it that's essential it's a preference two thirds of them prefer to go to the a third of them don't if it was essential to none of them would be or there would be demonstration that here in other places they are unhealthy or they're unable to reproduce or their lack of survival the problem here is there's no evidence that being in other places and they are in other places has any significance from a biological standpoint and that's why they can't connect the loss of habitat to the threat to the species let alone out t twenty one hundred there's very quickly a couple other points counsel for center for biological diversity encourage you apply a precautionary rule there is no precautionary principle that applies to listing a species course of clearly how this court that the default position of all species is unlisted and there is no hand on the scale in favor of listing every species because of that was true i mean every species is subject to some threat question is whether it meets the standards in the e s a once you are listed then you're entitled to that presumptions of the e s a to protect you which is one of the reasons to your honor's original point about what's the harm here there's an enormous threat here to the folks the native alaskans the government an industry that operate in this area from a species which is healthy and abundant in listing it there are a whole cascading series of regulatory requirements that follow either even under the m p a where it's already protected when you're listed as a species then you become a depleted species which is enhanced that which there are other regulatory requirements that value if you have an endangered species in you're engaging in an activity maybe you have to do any i guess of any a there whole there there's a designation of critical habitat as council set which has its own series of consequences and so there's a very serious series of events that occur and the goal here is of course to impede activity and that's why you listen to the sea that's abundant and healthy at the current time ok thank you  you had a few minutes for reply thank you your honor i'd like to start with the issue of have attacked gains and some of the points that i was a council made one there was a statement that the church e c would be sort of fine or at least i think that was the impression the excerpts of record also page two ninety nine so it's simply not true that this is just about the bering sea that is very significant second the agency specifically consider the issue of habitat gains and losses and this is in the excerpts of record of page fifty eight through sixty two and that was then p reviewed by two separate peer reviewers and the conclusion was that there will be significant losses in places we know are very good for the species as where that the majority of them live is where they have a very high availability of prey there will be potential gains elsewhere when there are less of the species or none of them and the prey scenario we have no knowledge that the primary nearly is good for them so the ultimate conclusion was that we know they're going to lose the habitat that's crucial and that they use and they may gain an attack that won't may not have the prey and it may be even worse than that and so the peer reviewers reasonably concluded that this put the species in danger of extinction the species doesn't need to be found to be they read into the lack of data on these issues and say well they are we acknowledge that we don't know and under the e s a we have to act best based on the  and we have evidence that crucial habitat will be gone and we have evidence that the species depends on that at how to tat and it seems likely that the species will be in danger of extinction in the forseeable future and we don't need to  it does not require us to determine a particular threshold at which it goes over a tipping point or a particular quantitative measure congress didn't include that that's part because this is not a species there are many species like this where they're less studied than turrets is what's their burden here we have evidence i think out of the our return to preach a standard they have to show that we fail to make a rational connection i don't think they can show that we're they have to show evidence that our conclusions are factual findings are counter to the evidence before the agency and they certainly haven't shown that well stretched then the extension from twenty fifty to two thousand to that twenty one hundred they say you're using exactly the same models you haven't explained why those same models which were insufficient in the past to let you get this twenty fifty are now sufficient to what you get to twenty one hundred i think that's inconsistent with what the record said at pages ninety eight to ninety nine where we explained why we switched our models and i now realize the doesn't specifically cite unfortunately the way overland study from two thousand and nine what it does this walk through precisely what that study says and explains that we approached the modeling in that way so i understand their confusion they think we didn't rely on it but what we did is say you know we used to do this but now we have a different modeling approach and we walked through that different modeling approach and why we thought it gave us a much better sense of what the twenty one hundred will be than we used to so we did explain why we thought our new modeling approach was preferable to our old one the underlying study is in the record and that was one of the ct reasons we decided we could predict that far out into the future as this new modeling approach and i don't think we have to have cited weighing overall in two thousand and nine it's enough to walk through the reasoning of weighing over line two thousand and nine and it cited elsewhere in the final so that is why that is one of the major reasons we switched position is that we're i don't even know this council switch a position but we took a different approach is because we have developed more expertise and knowledge about the models and we thought we could do it better this time and that is a decision within the discretion of the agency thank you i think you know it's a very it's a very interesting case