morning please the court i'm catherine hazard here on behalf of the nationally fisheries heiress i'd like to take eighteen or seventeen minutes at the start kristen myself or center for biological diversity would like five minutes and then i'd listing on the best available science and it there are two key aspects to its determination one is that the seals are highly dependent on snow caves on the sea ice for pup survival and the second is it stands were pretty well bound by our sister panel's decision and the other keys should we reserve ruling on this matter until we see whether the supreme court grants served on that sense to hold on until there's a determination because that has as you know the issues of a lot obviously this is a different species and there is a different record but there are all ice snow  ok can i ask you this just about the difference between this case and that one yes there's the added component of the snow here but it's a matter of all the snow has to have the ice right so that's why i guess i just didn't see there's a lot of fights over whether the snow modeling you know is reliable and the like but it didn't seem as though that really added much because you still have the problem that if there's no ice there doesn't really matter how much it snows in my in my right on that even though that's a difference in this case it doesn't really distinguish it from the other case because it's the same underlying problem that there just won't be enough ice there to support populations of the seals well yes it it needs ice to have the snow cover to provide the habitat but the i guess the analysis of the agency is different here and our view is that its record has to be evaluated on and on its own for each species so while the sea ice modeling is the same and while the loss of the sea ice means as you suggest that there won't be habitat for the seals here they're really crucial modeling for this species h is no cover up that's why i'm asking why i'm almost when i approached this case i saw all the fights over the snowball win and i think actually the plaintiffs have some legitimate points there but it seems to me it ultimately didn't matter given our decision in the earlier case because the earlier case upheld all the challenges to the sea ice modeling right right and if you don't have the ice for the snow to fall then it just seems like it's not the snow is not doing any good so why do we care i mean i understand that the snow is an extra wrinkle but it just seems like it didn't really matter in terms of distinguishing this case from that one because if there was no ice there the seals not going to write well it's not that there won't be any ice so i mean i would love to be able to agree with you because i think that would make it very easy for us to follow this case directly on that one but i think we need to be faithful to the record here and says because in the other case whatever the loss of ice is right right i didn't see any difference between the the needs of the and molt primarily pop a nursery young in areas that are over shallow water so that they can feed because they're bottom feeders and so the bering sea is this highly productive area where seventy percent of the bearded seals pop and it's that ice that will have well no longer be there during the key period for that period seal it will have to attracted to the snow caves right there was some discussion in the record about the fact that we don't know how adaptable or excuse me the experts seem to say that the the ring seal is pretty adaptable to changes there any discussion in the record in that case as to the resiliency of that species to receding well in that case there was discussion about resilient and somewhat flexible in adapting to no i mean one of the one of the i mean the agency had no information indicating that they are and it has to make its determinations based on the best available science and so when various reviewers are commenters might say well maybe they'll be able to pop earlier maybe they'll be able to pop on show are or maybe they'll be able to move north and adapt to  don't survive in any areas where there is inadequate snow cover so when they're saying well maybe they could adapt and adopt a land habitat for  of snow on flat ice and that's so that it can drift to what they need for further birthing laris which is fifty to sixty five centimeters if you get you know their rate ice ridges in the snow will blow in accumulate right so does that address your questions about the distinction between the seal case in this case i know that's my fault i just you're against what i heard you say is that the loss of ice that's relevant in that case it's a different set of ice than the ice that's at issue here for our seal that that's what distinguishes it so we what the reason i was posing the questions because it relates to judge thomas but i don't understand how there's much for us to decide the only two differences i saw is that here you have the added problems of the snow modeling right and here you had a majority of the peer reviewers disagreeing with the listing decision but other than that pretty much all of the arguments that are put before us were already hashed out in the other case and for bound by that then there you are so that's why i was trying to get at what's different about those two wrinkles how do they affect our case if at all right so so i guess that the difference is i mean as i say i would agree that most of the issues that the court decided in in the bearded seal case would bind the court here that is that it doesn't the agency doesn't have to have numeric information or should indications of population decline or extinction threshold all of those issues it's reliance on the sea ice modeling out to twenty one hundred it's explanation for changing from twenty fifty to twenty one hundred all of those issues apply here with equal force let me ask the question  walker just touched on how significant is that the peer reviewers were pretty much what was it four out of six or five out of six basically said we don't agree that the methodology supports the agency's conclusions here was that true also in the pritzker case you know i know that what accounts for that difference reviewer it's partly different reviewers it's it rejected them first of all as we explained in our reply brief there were three climate scientist peer reviewers two of those agreed with  and its conclusions about the projections out to twenty one hundred snow conditions one of them disagreed that was dr barber he misunderstood the modeling explained in its final rule that the two ways in which he misunderstood the modeling after receiving those peer review comments an additional study was done the two thousand and twelve not reviewing this peer reviewed study by hazel names didn't go back to the other two climate reviewers and asked them to take a look at the results of two thousand and twelve study to see if it changed their opinion there was only one time so disagree yeah it did the agency not go back to you know the agency didn't go go back to them i mean they have their own climate scientists who was involved in oh well yeah this looks better but you're saying what you're saying is that you had that information in the record before we made the determination of this additional two thousand absolutely yeah and a similar thing happened in the bearded seal case which  ninth circuit recognized in that decision which is you know obviously the science is developing quickly in this area and there are there is a lot of research and so a similar thing happened there where more recent studies on sea ice came out after asked because it seems to me that if you were to approach the question of agreeing with the the final with an idea as a scientist without you draw scientific valid conclusions that that's different then the standard of  making a reasonable determination on best available evidence so can you clarify what they were actually asked as the question because it wasn't clear to me that their when you read their reviews that they're aligned exactly with the standard that we have to apply you know that's that's right your honor and i think it is included in the record here what the questions they were asked are but they were asked questions like is it do you agree with the evaluation of the sea ice modeling do you agree that this finding adequately supports determination that the seal is threatened but there some more general and some are specific to the we're in show you rather as different things are saying yes yeah and they were asked to review different sections of their proposed rule based on their never can you address the district courts for the decision and i mean it seems to me that it is appropriate as a factor to consider as to whether or not the agency enacted protective regulations or decided not to do so it yeah it is not a factor that the agency can consider or should consider in determining whether to list that say let me ask in different ways why is it improper for the district court in reviewing for arbitrary and capricious decision making for the district court to look at the fact that the agency examined the problem and decided that even though it was going to list the species as threatened that it was not going to enact any protective regulations at this time well because basically that's that's the district court is then considering a factor that it's not appropriate to consider the efficacy of a list of listing a species is not a factor that the agency could consider and therefore it's not a factor that the court should consider but it just in determining whether common sense to me that if the agency makes a determination that a species is threatened why wouldn't it take some action to prevent it from moving to extinction well there there there are facts of listing that will be been beneficial to the species but that doesn't mean it needs to impose take prohibition which is what the four d roll was a decision about and congress made that optional for threatened species obligatory and i said is that driven by the fact that there are millions of the seals that currently exist and in our ability to count them is  now it's based on determination that the take of seals at this time the harvesting of seals by subsistence hunters is not affecting the population so it's not a threat and you and i seem to be talking past and i'm sorry er i mean it's it seems to me that if the agency is looking at the seal population and saying there are millions of them right there for whatever the native villages are taking for subsistence purposes at this time is not going to appreciably decimate the population and bring seals were saying and therefore we don't need to to take any further protection which would be required t  you know we have to follow the agency has to follow what that congress allows it to isn't siddur in making a listing determination for example i guess the question is with the same underlying under forty and so the question is can we not consider that in the context of whether or not it's reasonable to have initially listed this i think hopefully maybe that gets it yeah i think that's a much better question again the answer is no and i guess i'd like to just say that the agency has to consider what factors congress allows it to consider and the fact of a listing decision is not a factor to consider can consider and therefore for the court to consider a factor is not consistent with state farm's not consistent with the structure of the the e to consider whether listing it is going i mean it's hard for me to describe this whether listing is going to be beneficial to the species and i just like to jump here because we well you're species where there never are take prohibitions there are never are measures remedial measures that the united states imposes so congress contemplate that there there would be a benefit just by listing the species and that it's in sea identified that in its final rule that there are benefits even when they're on compulsory measures and we have the same problem here do we not in that the habitat is so broad that it includes foreign countries like canada greenland ice and russia we obviously don't take any measures ok ok good morning may it please the court kristen months out for intervener defendant center for biological diversity i just have two very brief points i would like to make today one is how the best available science mandate of the e s a required the service to less bring seals and the second is the important safety net that an e s a listing provides there's already been a lot of discussion today about the bearded seal case and that how that controls here and that's absolutely the case as was noted in the bearded seal decision that the e s a is concerned with protecting the signature of a species not just the preservation of existing animals and so the serviced must make decisions based soley on the best available science it doesn't require certainty or perfect data and that the national court was troubled by the fact that the best available science leaves a whole lot of unanswered questions not the least of it of which is at what point do we reach a tipping point with the species and we're dealing with as i said before the record suggests millions of ring seals  a the factors that the agency must consider in deciding whether or not to list a species and must base that decision solely on the best available science that's what the agency has to look at in deciding whether or not to list the species the the statute does not does not require the agency to quantify the magnitude of the population losses or otherwise the define a extinction  you can't fall back on being just the best available that if means if your two thirds of the information you need is either incomplete or unavailable where do we draw that line and the statute requires reliance on the best available scientific data and here the best available science is the i p c c models on which the agency based its determination and it is not the case that reliance on those models and that science means that every arctic species will be listed as was pointed out in the briefs the agency decided not to list ribbon seals and another ice species based on that same science here there's  scientific consensus that the habitat on which these species rely will be destroyed to the point at which they won't be able to survive and your your honour's earlier discussed how the  maybe may be adaptable here but the agency found that the seal one it be able to adapt to its massive habitat losses because of its long generation time and ability to produce only one pop per year or so the species wouldn't be able to survive these massive habitat losses and that you would concede would unite and this is this is he to be too blunt about it but i will suppose in my hypothetical that the district court had found that the agency's motivation for listing the species was to stop all drilling anywhere off the coast of alaska and the agency simply pointed to these studies as the justification for doing that even though everybody admits it may be the best available science but it doesn't answer some of these questions that the district court found fundamental that would be an example of arbitrary and capricious decision making would it not if that was the sole basis on which the agency relied upon but that's not the case here based its decision on climate change science widely recognized as the best available science as this court already recognize in the case and the listing provides several important protections to to the c l including the requirement to designate critical habitat to ensure that its most essential habitat areas such as where it feeds and are is protected it also requires recovery planning but if the science shows that the arctic ice cap is disappearing and that by twenty one hundred it may be for all intents and purposes gone to the point that shipping will no longer require ice breakers in order to transverse the arctic circle route what can the agency effectively do to protect the species well as it's as it's r in the polar bear critical habitat does ignition a critical habitat does a nation can help species threatened by climate change because it can motivate local ordinances that will conserve certain areas and similarly with and the worst case scenario on climate change projections is that by twenty one hundred the ice cap as we know it may no longer exist i mean that has all kinds of implications worldwide for flooding pacific islands and you know maybe even parts of seattle i don't know but it in that case what what can the agency effectively do we think that there are mechanisms within the say that can be used to address this primary threat to the such as section seven consultation requiring the agencies to consult on actions that have a certain significance of greenhouse gas emissions but could could lead to the mitigation of of those emissions but as has alre discussed the statute requires the agency to only consider the listing factors and the best available science and that's what exactly what the agency did here so we ask that this court uphold the agency's decision thank you  thank you i'm also appearing today on behalf of the state of alaska which does not have separate argument time but senior assistant attorney general mion is here on behalf of the state if the court should have any questions i want to hit head on the elf in the corner if you will why is this not the bearded seal case and i'm going to do that first before any affirmative argument but i even want to begin on a point that i think judge white from was asking more than once why is the snow even relevant here there's a very good reason for that this is a different habitats not just a different species different record different peer reviews we're going to get into that it's a different habitat for this seal the agency founders really no dispute about this and i refer you to e r one twenty four and three zero seven that the ring seal utilize a broader range of sea ice conditions and is uniquely adapted to survive and remain in the heavily iced areas which is a crucial distinction it also builds layers on shore fast ice that is the ice e you know connected to the like islands which i soon didn't have any polar bears and i wrong about that my understanding is it's sure fast ice in other words any part of the shore may have ice that stands island where there aren't any predators so that's why they could do that there as opposed to like the shore of the mainland let's say we assume bears are roaming around well but but the point is that the previous case the bearded seal was based on models about the loss of sea ice and accepting the premise for sake of argument here that the sea ice will largely disappear doesn't deal with the different habitat of the rings but are you making a resiliency argument here because there are you saying that the difference in the terms of the sure  with some of the modeling surviving i'm not sure what ardent you're making because that things were different but a great question and we're not just arguing resilience we're arguing that this habitat for the ring seal will be more sustainable than the sea ice habitat for the bearded seal and why is that and that is because the sea ice may disappear largely or completely depending on the time of the year but the heavily ice areas on the shore fast ice the models do not show habitat is going to be as you claim unaffected well the agency itself claims to have relied on this hazel study you heard about and it says that more than thirty percent of the habitat less than seventy percent of the habitat will be study right and in defenders of wildlife in this circuit it was noted that habitat loss alone may not support a listening determination and that even eighty two percent of the loss of the habitat was insufficient to support a listening determination we have far more than that here but the point is that the ring seal heavily i steria sure fast areas will survive even if the sea ice will not at least to a large extent and that's why the snow is important judge watch for because you have ice for the snow to fall on and for the ring seals to build their layers but you would concede that as he suggested in the premise of this question that it renders the seal more susceptible to predators like polar bears and grizzly bear well it may but i think the government would have to concede because it made the finding that there's no risk here of us a substantial enough nature to warrant its concern about threatened with extinction before the end of the century or that was the agency to find out what they have what evidence would demonstrate i mean unfortunately you're both in the same situation they may not be able to stablish the extent of the population or the habitat but it seems that you're equally unable to establish they would be any reason for them to say that the population are not surviving in meaningful way and whatever thirty percent is left right i'm not sure i quite follow because we believe that with more than thirty percent of the habitat remaining by the agency's own finding and by the way the models don't model well for snow and we'll get into that she made a comment about dr barber's commentary and i deal with that but i just want to say that the habitat will survive and the snow and the models don't support a conclusion that the snow will disappear they don't model for snow well the experts said that and therefore there is ample basis to believe that the ring seal will have plenty of habitat believe it or not even under that he's will study the thirty percent or so figure you will find this at s e r eleven thirteen and fifteen  you do the math which is that s t r thirteen stu point four million square kilometers which is just under a million square miles which is the size about of alaska and texas put together so that's the remaining habitat under the agency's own finding that's an enormous amount of habitat and there as other habitat and the rest of the world as judge thomas questions earlier alluded to so so why is this not the bearded seal case different species different habitat as we've just discussed different record and different peer reviews the bearded seal case this court noted at eight forty fifth third six eighty that a majority of the peer reviewers supported the agency listing determination there as your honour's questions referred to for the six here did not all of the mammal experts did not one expert did agree with the agency but if you read his commentaries really yes you looked at the latest models that's basically what  said for sure yeah and of course they looked at the latest models but if the models don't adequately model what we're talking about that's not adequate if you can respond to your opponent's argument that it was that the climate scientists the three of those folks who are us two of them oh they claim two of the three support them we read it more like one and not so sure about the other the other one doesn't really quite come out and say he supports but even if you want to give them that two out of three  opposing count which is that they may be answering a different question right as scientists whether or not the us is supported in a scientific way such that you can draw conclusions is a very different standard than the deferential stand that we have to apply in the context of complex factual terminations by the agency and whether or not there's a reasonable basis for the listing and it seems to me that one of the difficult you have to deal with is that it doesn't seem to me this that the reviewers said and this is a quote best evaluation available for the ring seal habitat assessment at this time notice that he characterized it as a habitat assessment but then he pivoted immediately this is that s t r one forty six and said i firmly believe that the results from this assessment do not provide an adequate basis upon which to consider the ring seal for consideration as a threatened species under the us endangered species and  some of the other experts quackenbush were said that noted that the numbers of the arctic ring seal which by the way is the most numerous marine mammal species in the u s arctic are three to seven million widely distributed across a large area  variety of habitats i guess my question is are those the factors that in fact in the first version of this case or the previous panel decided are those exactly the factors that we're not supposed to be considering that they're considering in terms of salvaging the full extent of the population at what point will reach an extinction threshold aren't those the very factors that is point given the previous panel determination that we're not going to consider i don't believe that at all your honor i got the decision right here and let me tell you what i think is critical in this i'm now looking at page six eighty three to the court and hear it to defenders of wildlife versus norton the circuit decision that evidence a habitat loss as i mention without a reasoned explanation there you go judge below where there is your standard of habitat without a reason explanation providing a causal link between loss of habitat and species surviv was inadequate to support the listing of species as threat it then went on however to say that memes did not rely on habitat loss alone to justify its listening decision instead the agency drew upon existing research to how habitat loss would likely endanger the bearded seal so it found a causal link to support the second factor under the statute which is whether the species would be threatened with extinction with it in the foreseeable future so it can see said habitat loss alone is not enough that's precisely our point and with the ring seals being three to seven million as opposed to one hundred fifty five thousand or so bearded seals you have twenty to forty times as many of these ring seals over a much wider area much different habitat so the population is obviously important to determine whether the species is going to be threatened within the foreseeable future  n quibble with the projections as to whether they're accurate but assuming that they are not when the predation or the mortality rate of these single pups is almost one hundred percent under the conditions that they predict will  prevail so if that's true it doesn't matter how many you start with in a very short time you're going to get to zero or close to zero at that kind of rate of mortality right scuse me they didn't say within a very short time they said by the end of the century and we said that's fine but that's it that's the reasonably forseeable future so you held the other panel held that end of the century was enough with respect to models about sea ice alone that was the habitat in and the point i'm trying to get across and hope and i'm getting across is this is a different habitat different record different peer reviews the point being therefore that the heavily iced areas in the short fast areas are not projected to disappear like the sea ice and therefore much more of this habitat is projected to remain and snow is the issue in the models don't forecast well for snow in the experts said that and if i may they also that he's a study which the agency cites and relies on and you heard it again this morning talks about average snow depth that's it that's what those models are about and the experts here had pointed out that it's not just average snow depth twenty centimeters above or below but it's also regional in a localized differences which the agency concedes e r eighty seven and ninety will occur and to a great extent and snow drifting which the agency essentially concedes that those pages as well because they build the layers in the drafts and so even if average snow depth may be hypothetically inadequate and the natives tom and say the ring seals are doing great even in areas where snow has  but when you can see the ones that actually weren't doing so well right hard me i said they wouldn't see the ones that weren't doing so well right now saying they see the ones are doing well but obviously the ones who are die of hypothermia are killed off or they will actually see that they are let's say so so you wouldn't be able to see the rate of decrease necessarily can't see the rate of decrease but what you can see is this you can see the exact opposite you can see a very healthy species that's very robust and all sorts of the ring seals out there and so the point is that  if snow layers are the critical issue which i think you heard from government council this morning and the ice remains and the models don't project that the snow will disappear then what was interesting in the trout on a limited versus loan district court opinion in the in two thousand and seven at six forty five f subsecond nine twenty nine and i'm looking at page nine fifty seven and i think this is right on point for the courts questions it's contrary to the record in the best available science for names three lie on oregon's viability conclusion in the face of peer review findings that the viability conclusion had insufficient scientific support i think you can read these peer review comments here and you'll see that they're saying that may be the best you could do at the time but it's not good enough and since the best available science standard is the standard we don't dispute that they looked at the best available science we're simply saying as your honor held in greater yellowstone there has to be an adequate basis for a listing or delisting decision and we don't see it here now why does this matter and by the way there are a number of other distinctions with between bearded seal and this and this case but among the most important points and i refer you to excerpt of record ninety four and seventy four the agency concedes it does not know how many ring seals there are has no ability to detect population trends little basis for quantitatively determining the relationship between environmental conditions or other factors and ring seal survival or reproduction so then i say that but they that they conceded the opposite in  but i guess i just don't get them coming back to the same point i made before that if we know that the mortality rate under certain conditions is one hundred percent or close to that i why does it matter how many you start with other than it's going to take longer obviously if you start with three million as opposed to  r fifty five thousand but eventually that the species will be on the verge of extinction that the agency did not make that finding and i think that's the point i was just making here the agency says an excerpt of record ninety four and seventy four it does not have any information about how many there are how what population trends may occur over time and it has little basis for quantitatively linking projected environmental conditions or other factors to ring seal survival or reproduction is think that's not that seems to me contrary to what the record before assess in terms reading right from the record that's what the agency said no no no i'm talking about the mortality rate in under the conditions that they're projecting will exist right well that's that's the reason why they say that even though there might be a lot of these animals today by twenty one hundred they're not going to be very many left and i don't say i don't agree the agency said that in in seal the agency said with sea ice gone the habitat is gone that was the finding there that finding is not applicable here and they didn't make a similar finding here they conceded in response to judge blowers question as i said more than thirty percent of the habitat would survive and they have no information about population and made no finding whatsoever about what the population would be now or at the end of the century oh well but we've already rejected that argument in the first decision and you guys  wrong so we'll wait and see what the supreme court said is right i don't object to waiting to see the display in court says i get that but you rejected it with respect to the bearded seal for a different habitat and so the mortality assumption that if all the sea ice is gone then all of bearded seals could die is the argument that was made there that the court accepted i understand it doesn't apply here this is a different case because the habitats different the ice will remain and the issue here is snow and the models don't project snow and the agency doesn't know how many ring seals there are doesn't know how many there will be and it couldn't project how many there would be or draw a connection between habitat and population it's a habitat case only or what do i do with the fact that the district court's language on summary judgment in both cases almost word for word identical well the standard steen over review i think you owe the district court respect he had the entire record in front of him and why in the decisions on the list in decisions for both species understand it were made on the same day by the agency i believe that's correct so what do you do with it i think the district court did the best it could determine that the best available science standard wasn't met here that the reasoned decision making standard wasn't met here and that that it needed to be vacated as he didn't remain to the agency and nobody saw to stay and it's been back before the agency for almost two years and that's where the matter stands and so i think that you should know why this case matters to our clients this our clients collectively represent the interests of the alaska native people had a unique relationship with a ring sealed since time immemorial they depend on the use and development of their ancestral lands and waters to maintain their traditional way of life the listing decision would allow dems to impose additional regulatory burdens you heard about those from the center this morning i think unnecessary infrastructure and economic activities which threatens the ability of the alaska native interests to subside in the arctic mr macgregor i'm very sympathetic to the argument that you are making and i think we are all very mindful of the relationship between the people and the land  particularly in alaska although it's true in other parts of the circuit as well but the question i have for you is in the absence of any forward the regulation and what additional regulatory requirements are now imposed on your clients by virtue of the well let me refer you of perhaps the best example to one of the declarations from mr brower an s c r for forty five the list several specific projects that are in various stages of consideration funding and what have you and i'm sure your honor knows how short the building season is for slope you know all right and so even brief delays associated with reviews and funding section seven consultation council referred to these matters then would require the other agencies who are helping fund these projects which are all of which all have a federal nexus up on the north slope so you have transportation you have other agencies the army corps for example permit ing or otherwise regulating and now they have to take into account the listing and consult with commerce and take steps if necessary to do something on behalf the ring seal that otherwise would not be required this imposes cost and delay and may threaten the ability of the native interest to even complete projects such as sea walls water treatment power plant renovations and the li that are now under consideration that are discussed and in the broward declaration in the gland declaration at s e r four fifty you'll see discussion of a lot of other matters including oil and gas development which are ongoing and are affected as well so and these the native interests in the state obviously rely on the revenues from oil and gas development and that's why those are so important you may not know the answer this question but it's my understanding that senator murkowski was able to include a writer in tax legislation and what is the effect of that writer of the president signs it in the law i left washington before the bill passed but i've been trying to follow it i'm going to do the best i can  that's on information and belief ok based on what i read first rough draft of history in the media that the billion dollar appropriation for that is in the bill in the senate bill right and the effect of that would be to promote  development of oil and gas in the anwar region but that doesn't address the delays that you are quite certain simply provide some additional revenue but the section seven consultations and th additional permanent obligations will cause additional cost and delay and may threaten the projects regardless ok that's that's the problem i take your point oh you wanted to save seven minutes for your i wanted to save seven minutes for m stink and i just very quickly say that you can eat up is that i don't want to eat up but i can't sit down without saying what we want what you we think you should do and want you to do ok we we want you to affirm the district court and the the listing as it was already reminded that the agency was the appropriate thing to do it was vacated we think that should remain in place and no one the species will not be harmed by that because there is no current threat to the species the threat is out at the end of the century there is no harm to anybody but our clients by a reversal of the district court here and by allowing that listing to go into effect and so we would ask you to consider very seriously that the agency really jumped the gun here that's what happened they didn't need to do this when they did it they didn't adopt the species recovery plan because it wasn't necessary they could've waited decades the international union  conservation the nature and natural resources said it best the species on the least likely to go extinct less and that this matter should have been deferred and reassessed in the decade before you sit down can you just give me the record cites again for the proposition that thirty percent and fifteen got and you'll find the math at thirteen and the seventy percent figure at eleven and fifteen ok thank you thank you thank you thank you very much please the court ryan steen from stoll reeves on behalf of the alaska oil and gas association the american petroleum institute i'm not going to bother with the podium because i've got time ticking so i just want to highlight a couple of points mr mcbride highlighted in this question upon and try to answer some of your questions this court's job is to look at the record in this case and determine whether there is a rational finding that the agency found that the species itself not its habitat would be threatened with extinction at the end of the century but habitat reduction is one of the factors that cabot has forgotten is one of the factors but there still must be a finding that that habitat reduction will affect the species in such a way that it will be in danger of extinction by the foreseeable future which they found with the year twenty one hundred and there are some distinguishing factors in this case from the bearded seal case mr mcbride mentioned a bunch of them i think the peer review findings if you look at the findings there cited in our brief that page eleven from four the peer reviewers that disagreed highlight some of those differences if it if it thought there was information sufficient i there's the fact that there's a certain number peer reviewers who don't support the listing does that matter if there's enough information the records support the ages determination it's not conclusive of it but it is a factor as mr mcbride cited the trout unlimited case where it can find the court can find that the agency was arbitrary in going against the peer reviewers finding because there was no rational explanation provided in the record and here we're saying that there is no rational explanation for finding that the seal species itself will be extinct by the end of the century and the agency's findings are right in line with that this is from this is a finding on s c r one seventy one this is from the administrator of the alaska region of nips talking about ring seal species and again the important factor is the response of the species to the projected habitat declines and he said the principal threat to ice associated seals is habitat alteration anticipate in the latter half of the century the expected response so this is the important point the expected response of the populations to such habitat alteration is uncertain due to a possibly of data and it's our point that if something is uncertain it is by definition speculative and this the supreme court in bennett the spear has said the agency is not allowed to make decisions claiming it's on the best basis of the best available science if the finding it supposed to make is uncertain another example from the record and says that  it's the agency's own guidance that it parents use because it's in the record to guide its listing decisions and in that guidance they say that the agency should make a finding that in the foreseeable future the species is likely to be at or near a qualit ninety nine where they say the current population of arctic ring seals is presumably large enough to avoid the penn station the standard that it referred to in its own guidance combined with long lifespans and slow reproduction a population of is not likely to experience extreme fluctuations that could lead to deepen sation and the threshold for deep in sation seals is unknown so again we have an admission that there is uncertain evidence as to what's going to happen in this population and that's the basis for our case here and i think these findings in this record is what distinguishes it from the bearded seal case and why this case this court has the opportunity to distinguish that case i say i only have a minute left but it seems to me your main arguments both of you basically is  right that is one of the factors and that from the record we don't know the agency didn't say if this habitat decline and the one study showing that seals could have one hundred percent mortality said there'd be zero species left in one hundred years i didn't say if there would be out of the three million that might be there one million left if there would be five hundred left at there'd be four hundred thousand left i didn't say it just said based on that we think it's going to be in danger of extinction we're saying that's not enough they don't have to identify a quantitative threshold but they have to do some occasion for the list of your view they need to do an analysis of what they think the population status will be and i think that's what their guidance that i cited right here says makes some finding other than a conclusory finding that it's likely to be in danger of extinction look at the available information look at how many rings tills they think are available and do something now losses of where the species will be one hundred years from now how long did these seals live you know so i could be wrong on this but i think it's fifty to sixty years ok so pretty long line i could be wrong on that too i'm just i'm i'm guessing yeah i mean they're not like they only for five years right i mean i assume it's right length of time but that's a guess they produce one pup per year and let's say one hundred percent of those for the forseeable future are going to be killed it just seems to me it doesn't take you could do the math to figure out i guess if you started with a population of say three million today how long it would take before the number got to zero but it would get to zero with hundred percent mortality that's my only point so we can quibble about whether the years twenty one hundred are sooner or later i guess but i don't think there's anything irrational about saying that if we predict that certain conditions will produce one hundred hundred percent mortality rate that the  to the danger of extinction that seems yeah no no no doubt and the explanation that your honor just gave is more than the agency gave in its own record it never found that one study where they observed one hundred percent mortality meant that every single seal that was born say fifty years from now would die in the population would go to zero none of that is in the record they noted the study but there is no analysis of what would happen to the population and the e s a requires them to review a status of the species and make determinations about what will happen to the species in the forseeable future their guidance says they have to do that and this statute says they have to do that and that's not what was done here well one hundred percent mortality was based on an assumption that the snowfall on ice is less than the numbers we were talking about earlier twenty to thirty centimeters per year but if you if you look at the projection that says there will be at least seventy percent i'm sorry thirty percent remaining worst case scenario at twenty one hundred then by definition you couldn't have one hundred percent mor question i think the answer though is that you're saying thirty percent of the ice will remain but they're saying that doesn't matter because there's not enough snow so that the mortality rate will be one hundred percent even if thirty percent of the ice remains that's what i'm assuming we're going to hear and so they're saying that but again they didn't make  finding that the mortality rate of the species would become one hundred percent based on that they know they described the study that made that finding but they didn't say the mortality rate for the species in some period of time is going to be a hundred percent they didn't do that an so all we're trying to figure out is where they are rational in saying that that set of conditions in a hundred years or eighty five years whatever is going to exist that there won't be enough habitat for them to build the snow caves and instead they are going to have to have their pups out on open ice or open land whatever's left that that to me is the only question and as long as they are rational in saying that that set of conditions is likely to prevail in twenty one hundred then it's rational to say it's going to go to zero because  conditions on a percent and we're saying that's not rational because they didn't show their math they didn't draw that connection as the required if you know math to be done that i guess that's why i'm just not persuaded by your point there's no math to be done in that set of circumstances is there here's an example if you look at the decision on the polar bear listing where it listed the species the fish and wildlife service listed the polar bear as a threatened species there were similar findings based on actually more studies showing that polar bear cubs die if they don't have certain levels of snow and habitat to form layers where there where they're born and reared so we have that fine and had a lot more studies that had the nymphs had for the ring seals showing how that occurs the fish and wildlife service though didn't just stop and say oh therefore the polar bears a threatened species and you know fifty years they did math they said we have this information we are going to look at the species and we are going to do some population modeling to see where do we think this  does this mean for the population and they looked at four different time frames extended to the year twenty one hundred and the worst ones showed that polar bear species could decline to about eighty percent of its current order twenty percent of its current level fifty percent sixty percent on down it looked at all that information it looked at where it said the population would be the effect that it was observing biologically on the species and what that said about its habitat what that could mean for the polar bear and it made a decision that the court found as a rational decision about what that could mean for the species of the polar bear and we're saying that here nymphs didn't do anything like that even if they had less data about the ring still population they didn't do any analysis about w this information we have mean for the species and we're contending that it's not enough just to say we have a study that showed you could have one hundred percent mortality and then conclude that the species that is in that one of its peer reviewers note it is three to seven million and one hundred years is going to be in danger of extinction that is speculative but speculative decision making it's not scientific and it doesn't doesn't have a rational basis just so i'm clear your argument was at least mr mcbride's argument was that if at the end of twenty one hundred we are still left with thirty percent of the available habitat to support the species and by definition you couldn't simply thirty percent of ice available for snow to be deposited on or not the thirty percent is ice with the appropriate level of snow for the snow case to be able to be formed to avoid hypothermia pritish did not find that thirty percent of the habitat would remain concluded that there would be a few remnant areas of suitable habitat and those are in the canadian arctic ar in the arctic basin it didn't and in a few small either isolated areas the thirty percent figure that he's using is from the hazel study names did not adopt this thirty percent figure i just council either it supports the agency's position or it contains some information that might actually support the other side you know let me clarify that is do so there are ten models in the hazel study they all nemesis model so there are no models that disagree with the numbers conclusions the hazel model said that there would be a seventy percent reduction of habitat north of seventy degrees ok a lot of the seals habitat is south of seventy degrees right so that means a greater than seventy percent reduction because the areas south of seventy degrees are already going to be lost but are you following me yeah but i'm not i'm looking at a species that basically covers the arctic cap so there's still a lot of land north of seventy degrees council let me be clear here so what hazel found is that there would be a seventy percent reduction in the habitat north of seventy degrees that means there is already a loss of the bering sea hudson bay many other regions that are currently habitat that are not factor  that said isn't thirty percent inside the arctic circle still several hundred thousand kilometers where i think the answer is yeah yeah i mean yes there's going to be some their forecast is that there will be some habitat left but the question is not where their species will be extinct in twenty one hundred the question is whether they will be in danger of extinction in twenty one hundred the threatened standard is whether they're likely to be endangered in the foreseeable future and thirty percent of of three million would be nine hundred thousand whatever well you can just their habitat is not just a matter of square miles their habit had has to do with with availability of food with the snow cover and areas that will be explained that they are remnant areas that will it projects will be still suitable habitat at the turn of the century are areas that they do not know will be suitable like the arctic basin that's not currently used by seals for pumping it's not available for seals for popping they don't know what species of food will be available to them so that's why they characterize it as a few remnant areas will remain do you know percentage wise what the thirty percent north of whatever the point you said is what that represents in terms of the totality of the seals current habitat is  no i don't know student calculate it i thought there was a diagram in the record that shows basically much of the polar ice cap for the arctic ice cap is inside the arctic circle an i don't want to get lost in the details here but i think it's important to consider that they aren't there suggesting that if there's thirty percent an area of thirty percent  left which is an overstatement of what will be left but what we're talking of the difference between seventy and ninety degrees right isn't ninety that the pole i think i might might my geography or geology is is a little weak but the last time i looked at a globe i think it's ninety degrees above the equator ninety degrees south i think you're i think i'm not expressing myself clearly here about what we're talking about north of latitude seventy degree that's right  it the statement that agency did not assess the risks to persistence is not true that agency stated it relied on to risk assessments and so it made an assessment ok the standard is substantial evidence and i think the plaintiff's argument here is is very disturbing because i think the question arises what does an agency ha to do to make a determination it will cost them a question actually i guess the main lesson is when your best available science is not able to answer some of the questions that we've been wrestling with is that substantial evidence to support the agency's decision or that just an arbitrary and capricious ruling it is not a question well i guess the question is yes there has to be has to rely on the best available science and there has to be substantial evidence but that's evident that both you do yeah right ok and we think so the question is whether or not what they had and i guess our panel in pritzker said that was best available science but then the question becomes is that substantial enough evidence that's that's the issue that we're wrestling with right and pritzker they say yes it is adequate evidence is substantial evidence is a standard that they apply at their agency merely needs to be models all showed the same decline projected to twenty one hundred those were truth against three observational studies for numbers model to other observation studies for those ten other models so the fact that some of the peer reviewers thought it was important to have localized information or more more studies or more details or whatever  that does not undercut the fact that all of the studies had the same result ok i've let you both go substantially over unless you have one more point that you said that there was only one study that showed mortality and nearly one hundred percent i'd like to see there are six studies that show mortality and those are from widely disparate areas of the seals habitat we'll let you know we are adjourned for the day