and her stand thank you your honor may it please the court jenny heard by him for appellant center for biological diversity and i'll try to reserve five minutes of my time today for a bottle i'll start by addressing the significant portion of the range issue and then i plan to address the services arbitrary finding of population increases and its dismissal of critical threats to arctic grayling that they face from high water temperatures at the outset this case presents an important question about the fish and wildlife services obligation to evaluate a species status throughout significant portions of its range under section fifteen thirty two of the endangered species act and the crux of this issue is the meaning of the word range which the servicers strix to mean only current range this is wrong because the word range as it's used throughout the act and its legislative history ninety percent of the stream miles that it formerly occupied but congress is intent to refer to a species entire historical range first is clear from section fifteen thirty nine j of the act which references explicitly current range showing that congress knew how to limit the general meaning of the word when it intended to and the service says interpretation would render the word current in fifteen thirty nine j meaning i understand that position and i don't think it's right however because range that it's range means current range as a service a jackass then fifteen thirty nine j would be referencing current current range and we presume that congress doesn't use words that it doesn't need to use in writing as a statue and this meaning is confirmed in other places in the act in section fifteen thirty three c the service used the range and in the legislative history set expressly quote ranges used in the general sense and refers to the historical range of the species now the same meaning must apply in fifteen thirty two not only because we presume that a term has the same meaning as it's used throughout the statute but also because fifteen thirty three c one and fifteen thirty three earth fifteen thirty two use nearly identical language so if this service finds under fifteen thirty two that species is endangered in a significant portion of its range under fifteen thirty three c one it specifies over what portion of its range its endangered and the service would have you read the meaning of the word range in these tandem provisions as entirely different let me get  what i'm what bothers me or gives me some pause about your argument so your argument works so what you're saying is that you can only interpret the range only has one meaning one of them begin with meaning means historical range and therefore under chevron chevron really doesn't apply because resolved now the d c circuit recently said the range is ambiguous and went through some of what you just said and concluded that the services interpretation of the word range to mean current range was reasonable going through there they did it they did their pretty good analysis what's wrong with there were to go wrong this is your ass what you're asking us to do is to reject what the d c circuit did and essentially create a circuit split on the meaning of range if it is in big us then you know we have chevron deference we have to deal with right so where did the d c circuit go wrong so the d c circuit in the humane society case to get it wrong and i don't say that lightly but that the court there wasn't presented with the textual arguments with the legislative history arguments particularly with respect to fifteen thirty three than saying range only has one meaning  it is different what this service would have you hold is that or find is that in defenders and tucson the court found that the word range is ambiguous but they did then they held that the full term significant portion of the range is ambiguous when the court looked at the meaning of the word range it said ok in tucson i can quote tucson to you the appropriate criteria for testing significance are und fined but the secretary must develop some rational explanation for why the last portion of the species range are insignificant that's at five sixty six f third seventy seven significant is ambiguous but range is not and the court stated in those cases that the service must evaluate whether last historical range is a significant portion of the range i think there are circumstances under which last range is a significant portion of the range in the species status there could more unless saying now the service didn't grapple with that issue here because it said categorically last historical range isn't part of our significant portion of the range analysis but if it had undertaken that analysis what it would have done is looked at whether that that last  habitat provides conservation value to the species in the service defines the significance by reference to the scientific principles of resiliency redundancy the big hall from which grayling have disappeared over the last couple decades and this habitat was important enough that the service had restoration efforts there and reintroduction efforts there but when it finally came time to grant or deny the protections under the endangered species act in two thousand and fourteen the service didn't even consider whether those parts of the grayling's habitat which are still suitable by the restoration zone or by the services own admission whether those areas were significant and whether the listing was warranted to offer special protections to habitat in those areas to allow for is the x purpose is to conserve species and conservation doesn't mean simply maintaining you know whatever few individuals are left in the tiny portion of their habitat that remains conservation means more than persistence it means recovery as well and a meaningful consideration of whether loss habitat is significant would have looked to this conservation purpose which of our ninth circuit do you think are the best cases for you on the issue that the usa is not just trying to protect you know the current living members of the species but also to restore it through i think the gifford pincio taskforce case which i cited a moment  ago expresses that clearly i think that endangered species act itself in defining conservation embodies that concept as well and when the service looked at you know they tell you we looked at the historical range and therefore we satisfied our obligation under defenders to consider at the but the services consideration of historical range here began and then and begins and ends with that statement that the effects of past range curtailment on flu via grayling are present but there appears to be sufficient adequate habitat remaining to support the species that's not a meaningful consideration of historical range it's no consideration at all because if the service find says it does did here that arctic grayling can persist in the range where they still exist under the services treatment of historical range it will never factor into the analysis and this highlights a real contradiction in the services position with the purposes of the act so if the service had a value weighted whether the listing was appropriate before grayling had disappeared for governor creek for example it would have considered weather threats to grayling and governor creek warranted listing to prevent the species disappearance from those areas but it didn't undertake that analysis at all here and as a result as a species range contracts to ever smaller areas so too do the protections afforded by the act and that simply can't be what congressman you put in the side of the range argument you had other you had other mean if we were to disagree with you and felt like we should go along with the d c circuit you had other arguments as well that you would be correct we did and they provide independent reasons for setting aside the two thousand and fourteen finding i'll turn briefly to two of those arguments and the first is the services arbitrary finding of population increases in the big hall and ruby r and this issue is really important because it was really the lynchpin of the services decision not to list and these illusory population increases were used to dismiss nearly every single threat that the service had previously identified in two thousand and ten as warranting listing of grayling in relying on this leery unpublished data to find increasing population in the big hall and ruby rivers the service didn't acknowledge contrary data that's the dontcha medics study which documented a population decline over a period of decades through two thousand and twelve with the lowest number shown in that final year in two thousand and twelve and state monitoring data which for the big horn river showed yearly increases and yearly decreases but does not support the services unqualified claim of a steady increase in that population and for the ruby river the same monitoring records show an overall decline between two thousand and nine and two thousand and thirteen with population declines every year from your point is that they just didn't account for that other and for the negative information or for that for the information the showing a decline they didn't even mention that there was contrary information in the two thousand the what  obligation they have to recognise it exist in the explainer the way their obligation under administrative law and under the endangered species act best available science mandate is to acknowledge contrary information explain why it is or isn't relevant to the services finding and you know if the service finds that that information is not credible needs to discredit that information on the record otherwise this court can ascertain whether or not th service acted reasonably the second issue i want to address briefly is climate change which is important because it will exacerbate the two most critical threats that face grayling habitat which is  watering and high water temperatures the service acknowledged in its two thousand and fourteen finding fifty four that water temperatures will increase with climate change but they go on to cite uncertainty about how different temperature and precipitation scenarios will affect grayling but again this is the theme of the two thousand and fourteen finding the service hasn't explained why that uncertainty counseled against listing rather than for protection and that's what's required by the circuits precedents and particularly the greater yellowstone coalition versus surveying case but even more troubling the services cite those studies the service cites to support its findings of uncertainty i'm page thirty five of its brief don't leave any questions about whether grayling will face dire future conditions the only question those studies leave is how dire it will be so for example one of the services studies at six fifteen acknowledges substantial decreases in habitat using only air temperature relationships and it goes on to note that flow reduction will exacerbate stream temperature rises so while the two thousand and fourteen finding says that rising air temperatures won't have as significant an impact on grayling as other climate change facts the science they cite and water above seventy seven degrees and water temperatures above seventy degrees can also affect survival and that's undisputed the service acknowledges that in the two thousand and ten finding the two thousand and fourteen finding it's also particularly where the service hasn't made a priority of conserving arctic grayling habitat in the face of those threats what arctic grayling need most is cold water and plenty of it and that's what endangered species act protections can get for this species so you have one other was the genetic what was it the genetic it was the right one other argument you have the other genetic threats which a service shouldn't just didn't address at all in the two thousand and fourteen finding which is in contrast with what it did in two thousand and ten and then on the nearer term threats the threats posed environmental disturbances to very small populations those services had treated that issue arbitrarily as well particularly the ruby river population which a service said was essential for the preservation of the species because it provides redundant redundancy of the flu via life history that otherwise is only present in the big whole river rupie river has forty two adult breeding fish and the this service relies on a single year population increase under the leary data which occurred between two thousand and eleven and two thousand and twelve to say ok forty two fish mission accomplished accomplished this is a viable population where previously had said we need at least ten years of data that show increases that showed that  said you were going to try to pull five minutes for a bubble but we didn't do that partly because of our question so for planning purposes i'm going to ask the clerk to answer fish and wildlife service i would like to use my time to address the arguments raised in the opening remarks in order the first argument raised by the center is that the services interpretation of range is unreasonable but the d c circuit as judge paez has noted has already answered this question with a thorough analysis finding the term range to be ambiguous and that the services interpretation of range was reasonable and within permissible statutory not create a circuit split on this issue and should find similarly that the services interpretation of the of the term brains as referring to current range is reasonable under  discussed in this case and found that none of the statutory provisions shed light on the meaning of the term range and that the legislative history the d c circuit specifically stated that legislative history was not relevant and i would like to point out that was not real well the legislative history here that the plaintiffs cite to refers to a different statutory provision not at issue here and it also refers to a congressional report from one nine hundred seventy eight which is after these definitions were defined in the original act so legislative history that has been generated in a subsequent amendment cannot be used to inform the definition of range in the original and act meant also i would point out that when statutory term is ambiguous and the agency has exercised its discretion to interpret the statutory term legislative history cannot be used to overrule it and authority for that is found in this court's decision in san bernardino which is at sixty three third eighty three i would also like to point out that the supreme court in the yates decision which is that one thirty five supreme court ten seventy four has found that the same term in a statute can be used in different ways throughout the statute so there is no requirement that the term range be used in the same way throughout the essay and if this court reads the services thoroughly reasoned policy where  has interpreted interpreted significant portion of the range the court will find that the service has discussed and considered all of the statutory uses of the term range and that its interpretation is reasonable and consistent with the purposes of the essay because it focuses the services resources on the areas where species are most imperiled that is its current range asking the way that the and this interpretation doesn't mean that the service doesn't ever think about lost historical range it's extremely relevant to the services decision because what it asks is when looking at a species current status it looks it asks can the species survive in its current range even though it has lost all of its historical range and what can the service do to encourage the expansion of the species outside of its currently occupied range so the question is extremely relevant to the status of the species and that's indicated by the services thorough discussion of last historical range here and specifically what the service found in this case is that the species though the species occupies less than ten percent of its historical range six populations occupy presented of portion of the historical range and discussion of that is about it e r thirty seven and your sixty nine the service also noted that reintroduction efforts in historically occupied areas have been successful and were planned to be continued through the present time and even past twenty eighteen discussion of that is found at year forty five and fifty seven fifty eight let me ask you just one one of the question along with issue so council made reference to two of our ninth circuit  tonight circuit opinions that touched on historical range correct should they inform our understanding of what the term range means now those decisions are helpful for this court understanding to the extent that both of those decisions defenders and tucson found that the entire phrase is ambiguous and having found that this court should then look to the services interpretation that was  comment and defer to that interpretation under chevron those decisions are also relevant to the extent that they can be understood as saying that the that the agency needs to consider and account for lost historical range i would like to direct the court to page eleven forty five note eleven of the defender's decision which specifically that's eleven forty five no eleven which the civically found that the that the service in that case hadn't offered any interpretation of the statutory phrase and so the court was sort of looking at the various arguments presented and coming up with its own interpretation of the phrase itself but having found the phrase to be ambiguous and with the service now having looked again at the phrase and specifically the term range and having issued a policy after notice and comment that interprets the phrase this court should defer to its defer to the services interpretation of that word is the u well i mean i would direct you to page six zero four which specifically talks about section fifteen thirty nine j and in the paragraph that starts with the third place that range appears a section fifteen thirty nine say the d c circuit goes on to say that provision cuts both ways on the one hand it could be argued that if range already means current range then the addition of current would be redundant on the other hand the use of current range could also be read to corroborate the services view since current range of fifteen thirty nine j may refer to the listed range of the endangered or threatened species so the d c circuit found that fifteen thirty nine j is not dispositive of the meaning in fifteen thirty two which is that issue here and and really just suggests that the phrase the term range in fifteen thirty two six and twenty is ambiguous and in that case the court should defer to the services reasonable interpretation of it under chevron and avoid creating a circuit split on this issue if you had other arguments even if even if well i'd like to address those too the first argument concerns the services finding that the big hole river and ruby river populations were increasing and i would first like to say that the services decision that listing is not  time was really based on not just population it information but other information as well about habitat improvement projects but specifically what the agency found is that nineteen of the twenty populations are either stable or increasing and eighteen of these populations are located on federally protected land there are two fluey all populations in the big whole river and the ruby river and recent genetic information from two thousand and fourteen showed that those populations were increasing now the use of genetic data to infer population sizes is an accepted method and the service relied on that method in its in its finding its twenty fourteen finding two to determine that those two populations were increasing the center points to some sort of not satisfied with the with the services explanation of its population finding in the record the center points to the de haan study to sort of undermine the services reliance on the leary study the divine study actually is not consistent not inconsistent with the leary study though to han looked at climate change and grayling specifically the impacts of climate change on grayling and what it found there some particularly important language at each e r three thirty eight what to hind found or what he did actually was take for samples of grayling over four different decades one sample per decade starting in the one nine hundred eighty s and ending in two thousand and eleven two thousand and twelve and what he found was that the population in the big coal river had been declining since the  eighty s but stabilized since two thousand now the last sample that he took was in two thousand and eleven two thousand and twelve and the leary study picked up where han leaves off and specifically looked at the question of whether grayling populations are increasing and leary looked at annual data from two thousand and seven through two thousand and thirteen for every year and sampled the genetics of the fish and found that populations were actually increasing so those two studies are not inconsistent and the the agency emitted lee did not go into the details to explain why these two studies are not inconsistent in its finding but it didn't need to because in its view the studies are consistent and use the studies where they are most appropriate so for leary to show that the populations are increasing and for to han to discuss the impact of climate the leary study was  and it was a presentation it was unpublished data and it was discussed and presented at a workshop the notes for which are found it at around two sixty and what and presentation well it wasn't it was more than just a presentation it was the actual information that we're used in and i would say yes it would be nice of larry had written up his graphs in text for us to review and understand better but but the service says the service was under an obligation to make its decision within a certain time frame as a result of multi district litigation and to resolve the backlog in the four in the in the fish and wildlife services listing decision so in an ideal world analysis they would have listed the greeley and it's really it's really interesting that within four years everything switched and that change decision is justified by the record and the new genetic determine the conservation value of the of the different grayling in the upper missouri river so it only as it only determined that five populations had conservation value in two thousand and fourteen genetic information showed that there were twenty populations with conservation value in two thousand and ten the ruby river population had just started to show some natural reproduction by two thousand and fourteen the service found that natural reproduction had been occurring for several years in the population i thought there were some criteria that the service looks in when looking at genetics and that if you look at over a period of time that's correct and he was like a ten year standard if i'm not mistaken that they  like to look at this kind of data over extended time in here was just a couple years well i think what you might be referring to is the two thousand and ten discussion that that ideally there would be ten year we needed ten years of information on really  circumstances well what the agency did is look at the information that it had available in two thousand and fourteen and determined that it did in fact have enough to decide that the ruby river population was viable and self sustaining given the fact that that the genetic information showed that there were an increase in both breeding fish and effective population size and that fish there were there were documented instances of natural reproduction and that fish were now in forty miles  of the historically occupied habitat and remember this population the ruby river population is a completely reintroduced population that was no not in the ruby river prior to two thousand and six so the only reason why the really river population is theirs because it is there currently is because extensive conservation efforts had been made over the past several decades to get it there and get it self sustaining and so that information was not available in and ten when the service issued its two thousand and ten warrant about the could of fighting the agency reasonably consider that information it's twenty fourteen finding i'd like to briefly address the montana fish catch information to say that the fish and wildlife service use this information to correlate its population findings but it didn't rely exclusively on this information where it had the better more reliable leary data available to it i would like to briefly address the services findings on climate change and to say that under the center's view or adopting the centers you really the service would be bound to list all arctic species because of evidence that the climate is warming and the fact is not all arctic species will respond to climate change in the same way and the agency needs to be careful about which arctic species it less taking into account the individual circumstances of each species and here what the information of the record showed is that habitat was improving for these grayling there were extensive has habitat restoration projects that were under taken in the big whole river and continue to be undertaken that that reduced water temperatures extensively over the last decade and that the yes there are still some days with warmer weather but the overall number of days with warmer weather has declined dramatically and it's also important to note that the warmer weather or the warmer water issue it is not a sort of trigger for fish kills when water temperatures hit seventy or even seventy seven degrees what the seventy seven degree mark means is that if it's seventy seven degrees fifty percent of the fish and fifty percent of studied fish do not survive for longer than a week it's not it fifty percent think you don't survive for longer than a week so if you have one day where one portion of the main stem is reaching seventy seven degrees it doesn't mean that all of the fish there are going to die and the fact is what the evidence showed is that water temperatures are decreasing as a result of habitat improvement projects and that information was reflected in the study which is the only study that the service considered that actually looked at grayling in montana and the relationship to climate change and that study found that grayling in montana respond differently so the big hole river population has showed some evidence of decline although other measures for the big hole river population showed stable populations are a population that had become stable and the other population that behind studied which was the centennial valley population showed an increasing population even though air temperatures were increasing  all these conservations efforts by the state of montana and its many partners they're out there they're prolific we're working very hard to conserve the species and we have been for many years extremely important point to be made under here is that it's not only that our partners in this or not only the state others have to be other state agencies the u s fish and wildlife service it's also n g o s and most importantly it's private landowners you have heard today the emphasis on the big hole river and that population amongst all the populations the twenty that are out there that emphasis is there it's there in the in two thousand and fourteen finding it is an important population and there w an important population because it's a representative of one of two fluid populations there are many of them that are absolutely all those absolutely all populations are also important the service found that they have conservation value they are in lakes some of those have into the populations of individuals that are several thousand and some of them are smaller but good conservation of the arctic grayling in the in the upper missouri d p s montana  is is dependent upon also the fluid populations we met that in the big hole we are working extensively candidate conservation agreement with assurances this is now covering over fifty percent of the eligible ground in the whole valley with many many participating landowners private land owners it is difficult it is a lot of work to get these people involved in this and to buy into this and when you do it is vital that they stay that way and there have  improvements in the state of montana is working on these things it is our people who go out under the c c a work on the individual agreements with the landowners and once ones in place are working with them to bring the funding to bear and get these the state of montana would remain english would remain dicom it is it indifferent no it's not indifferent well first of all you don't want them listed i would rather not have them listed under the circumstances because just i'm talking about the general you know what you're talking about this conservation of why not well one thing is is keeping the faith in the inn and the buy in from our private landowners and this is this is not ideological are not going to buy in we don't know that we don't know that we've been working with them extensively and and what they are working for it is a conservation of the species and make no mistake the essay is scary for these people it really is but we have got things going in a good direction out there and this is the e s a at work this was my third point the e s a at work in this is e s a success without the need for listing we get so focused on playing on on listing or delisting and whether we should do that or whether we should not but the effort to get this list it started many many years ago and in response you have the service and you have the states and you have many partners working to conserve this species and it is paying off we've been talking about habitat improvements we've been talking about population and i know that we can nit pick at individual datapoints but the fact is we've opened up more habitat to these fish we have overall increase improving temperatures that means decreasing temperatures in in the big hole and its tributaries we have a ruby river population with focus on population size there that's the wrong focus that is a replicant now a genetic replica of the big whole population those big hole fish they were created a genetic reserve that those reserves went into establishing that ruby river population and the sheer number of fish and it is not the important point the important point is that ruby river in the ruby river your honor that's correct yeah so these conservations efforts are working they're doing so with multiple partners which is vitally important and what it says is the a in this case is working without the need for listening the species the species not here not now it doesn't mean that it can't be reconsidered in the future we don't know what that holds we know that we're doing a good job we know that we're having a positive impact thank you is are you here over time but is there anything else you'd like to say thank you alex ross first said the government's argument that the meaning of the word range can have different meaning in different sections in the legislative history doesn't bear on this first some point out that  that it's the court's role to make sense not nonsense of the statutory scheme and that includes making sure that the term range has a consistent and sensible meaning throughout the statue and the legislative history of fifteen thirty three c one is not subsequent legislative history it was concurrent with the men meant to that section and it's instructive to congress says intent with respect to see one will also address the point that the humane society court didn't valuate legislative history in footnote eight to that case the court says expressly that no party brought any legislative history to its attention and in that case the court still said that the fish and wildlife service must evaluate whether unoccupied portions of a species form or range is significant with respect to population increases the state says population size in the ruby is irrelevant but the service said in two thousand and ten that viability of that population is essential and to respond to judge pius has questioned the leary data are shown it to seventy nine and to ninety of the record and i'll point you particularly to page two ninety which documents the three years of population data that the service relied on for the ruby which shows single year argument i want to say again how much our panel appreciates the learned skillful and helpful arguments from all the parties  and you've all done an excellent job it's pre shared bias in this case shall be submitted and the court will issue an opinion at some point into course