here today to address what is the black hole that is the warranted but precluded designation for species under the endangered species act even though congress explicitly intended that this would be a temporary stopgap measure in practice the u s fish and wildlife service uses it as a loophole to indefinitely delay protections for species that undisputedly warrant those protections we're here today to deal with one of the species waiting in limbo which is called the white park pine let me make sure i understand precisely what's at issue here the warded but precluded category exists under a law so the question in front of us is whether or not the agency is sufficiently justified its conclusion that this one this listing is under comes under the heading wanted preclusion precluded that that's the question that's correct your honor so so we have no power to say warded but preclusion is a terrible idea not justified by statute no your honor you don't have the ability to overrule the statute but you can apply the statute in line with congressional intent which was to avoid the foot dragging of the agency and to ensure that there with  we hear the case now now the category is moving today well your honor out of the most basic level the issue is that every year by law the agency must issue a new determination so in the statute determination in terms of the number of new determination as to whether the species is warranted but precluded the statute at sixteen u s c fifteen thirty three b three requires a new twelve mon fine and that was the attempt that congress made to ensure that these weren't about precluded terminations were not list for it would not exist forever and so every twelve months they're supposed to issue a new finding what they've actually done in practice is every twelve months they just sort of cheer back to the original warranted but preclude a determination and maybe give it one or two or three paragraphs and so perhaps if the agency had actually been issuing a neutral twelve month finding every twelve months i could understand that argument but the fact is that every year they issue two or three paragraphs that hear back to that original twenty five page finding that has all the scientific evidence in it and so even though they changed the priority number just this year that still tears back to that original twenty five page ruling let me ask of this way though how would in your view a sufficient explanation of  but precluded category change when the number is now eight so it's way down the list instead of two which i gather is actually functional term terms of the top of the list that's correct your honor well so again the original so our challenge to the original decision was that it was arbitrary and capricious because the representation at the agency made the decision was false they said that the wife our client was precluded by listing priority numbers one and two the agency then admitted and answer that there actually were no listing priority number one and that they that the listing pride in number two is the number the wife our pine itself has and so on it's face that's an arbitrary and capricious decision because it's false it's contradicted by the record but your question is now that they've changed it to eight how would we get any relief in in a rematch and basically  seem to me at least stop my head that the explanation necessary to justify awarded but precluded category doesn't have to be quite so strong or so prochoice of when you're so far down the list as the number eight instead of especially being tied for everybody else at the top of the list well there still does need to be a persuasive explanation and so but but just a minute i think the question is does the explanation ne change i mean my worry i'm following his questions very carefully because my worry is one of your arguments is there are some listings that three or four or five or six whatever they were who were given the chance to be if you will listed when you had a two sitting there and they weren't list now you've got an eight sitting there so all of those would be a head so your argument makes  sense and that's why i think judge fletcher's question is important and i hope you answer it as he asked yes you're on and so this basically brings up the doctrine of mootness because essentially what we're saying is what you're asking is have they remedied the challenge to that original decision by changing the lifting determination to a different number and maybe this does maybe mootness doesn't fully capture it it may be has the case now sufficiently changed that going forward we will have a different case and your honor i do believe that is exactly what in is about so in every case where the court addresses mootness essentially what the agencies in this case a sad case less like this what the agency does is somehow remedy the underlying documentation and so generally an endangered species act case what that looks like is you bring a lawsuit saying the agency didn't do consultation then the agency does the consultation and says now your case is moot we already did exactly the analysis that you asked us to do so that's the similar the similarity between this case and those other mootness cases and so this court on bank in career tribe addressed a very similar issue where the agent the federal agency in that case the u s forest service was being challenge for not doing endangered species act consultations during the pendency of the litigation they said that the action was no longer happening in other cases they said that they've completed the consultation and so that's when the mootness issue the doctrine does come up is when the agency has somehow done some sort of documentation that means that the original challenge to the original document is no longer at issue so that's what this case is they've put forward new documentation and they're arguing that that does moot our challenge to the original two thousand and eleven rule and the doctrine of mootness what that turns on is whether there's still any effective relief that can be granted if we look so time but now with the number eight so that doesn't tell me that it has to you know i have to go forward with the listing because it's now a number eight so how does how does our holding that you're right as to when it was a number because what is what good does that do you well your honor because they're not actually issuing a new twelve month finding every twelve months that's required by law every twelve months they issue a one or two or three paragraph finding that cures back to that original two thousand and eleven findings so it's essentially a house of cards where if that original two thousand and eleven finding was unlawful then the agency can't continue to ring back to that every year so perhaps the remedy would then be to declare that that two thousand and eleven finding was unlawful and remand back to the district court for a determination as to whether the new two thousand and fifteen finding as a whole is sufficient and stands on its own or whether it was in an unlawful finding and therefore the agency must issue a new finding to support its lpn eight destination no i should confess i should know this but i don't so what's the timing with respect to the new listing number eight and the suit in the district court and coming to us and the tearing back and you help me of the new tearing with respect to to list and number eight yes your honor and can you run me through that ye most recent twelve months finding is that december twenty fifth teen finding and that is only three paragraphs it cites no evidence no science and there's that finding both we change it to eight and we' does two possible things to happen number one we change the number from two to eight and then the other thing that happens on a mayor may not happen simultaneously is the explanation for why this falls into the wanted by precluded category did both of those have an exam time then well december twenty fifth and when if ever was there an explanation justifying warranted but precluded when the number was eight the same so it did happen simultaneously so that's the three paragraphs that we're talking about which we our position is that because it's only three paragraphs they're necessarily relying hearing back to that original two thousand and eleven i c s and that all happened while this case was on appeal to us that's correct your honor so both of those things those are both in the same three paragraph or two determination there are also other annual candidate notices of review which have been issued sense to this one right know your honor not since the december twenty fifth teen no no i'm not talking again my bad question not since december two thousand and fifteen but since the two thousand and eleven notice here so being  appealed we have two more that have been issued since then only just a step back a minute the two thousand and eleven we're not challenging the canon candidate notice of review from two thousand and eleven well we're challenging is the july two thousand seven final rule or well rule that the was by far kind is warranted but precluded from after that july two thousand and eleven rule the agency then issued an annual candidate notice of review in the fall of and eleven and under law has to do that every twelve months so it's happened every twelve months since you have never challenged any of these annual candidate notices of review since july that's correct us to levon that's correct your honor and it's my understanding these are all just because it seems to me these facts may change based on this change of eight that there were in fact were pending at that time on ninety six listing actions including seven hundred thirty species actually precluded precluding work on this proposed listing eleven or finalist ngs twenty two high priority all of that you never challenge that either you do you are you asking whether we challenge the two thousand and eleven candidness of your view or subsequent candidates so i'm if i'm to determine whether you made an arbitrary  whether the service made an arbitrary and capricious decision i have to look at whatever what other work they have going right and the work they had going as what they say there were ninety six listing actions going at the time involving seven hundred thirty species actually precluding work on the proposed listing eleven where five pending final listings twenty two were high priority pending listings each one of those were proposed listings that they had in front of them that precluded doing this one i didn't find that you challenge that no your honor our challenges to the two thousand and eleven rule itself and not to any subsequent candidate notices of review and x but i'm not sure this is a subsequent this is what they did they say they in july published their findings they gave what they said and they said and as a basis for what we're determining in this particular action we want you to know we have other pending listing actions and they listed what they were they said we're working on ninety six of them because some of them are wholly highly prioritize priority proposed listings i didn't see mean it seems to me you challenge that they'd say they made expeditious progress on the listing of species that they did shoot final rules one hundred eighty three species also made ninety day in twelve month findings and hundreds of species it didn't seem to challenge that there is a lot of information that is in this if you will july nineteenth two thousand and eleven determination by the service which says why they did what they did  and it didn't seem to me that the only thing you challenged was the way they waited those against the two and your honor that's because the statute itself so we're not just talking about a case here where there's an arbitrary and capricious standard where the agency's decision cannot be contrary to the record we also have the explicit plain language of the endangered species act itself at sixteen u s c fifteen thirty three b three b little i which says quote that together with a description of these and evaluation of the reasons and data on which the finding is based so as a matter of statutory plain language they have to include information in the wife ar rule that demonstrates that it is with a description and evaluation of reasons and data that shows that it's actually precluded by pending proposals and i'm not i'm not even arguing about that i'm glad to know your basis because that's what i thought the basis was but given it's an eight and not a too it seems to me that that makes a different analysis and so your honor we're talking about i think is two different things one is that the original challenge to the twenty levin rule our challenge did demonstrate that that rule was arbitrary and capricious because they did not adequately put forth reasons and evaluation of data to justify but what you're now asking about is now when it's a listing priority number eight and so that's why we have to look at the moon a stack and we have to look at the capable of repetition yet evading review doctrine it specifically addresses a situation where the agency decision changes every year or two and therefore of aid judicial review and this is really a critical point because in this case the agency could be changing its listing priority number every single year because it's required to make a new twelve month finding every twelve months and so if this court would hold that this case is moot then it begs the question when will a plaintiff ever be able to fully litigate and appeal of a warranted but precluded terminations because the agency can always as it did in this case simply issue a different listing priority number after the briefing is submitted so we have no opportunity to brief a different issue and now they say that the listing priority number has changed we can't challenge th species anymore but the fact is that they can do that every twelve months and if they keep doing that every twelve months they will effectively foreclose any appellate review ever of a warranted but precluded designation and so that's why we do have to look to the moon  structure and we do have to look at the capable of repetition yet evading review doctrine and we also have to look at the voluntary cessation doctrine because this is a voluntary action the agency took we know that it could just as easily next year revert back to an lpn two and the reason we know that is because they say their their representation is that one of the threats has temporarily subsided but if you look in their own exhibits exhibit to their motion exhibit see it page thirty three it says quote mountain pine beetle epidemics are cyclical and given climatic conditions that are increasingly favorable to the veto we anticipate future epidemics will be more frequent and more severe so by their own logic they will be shifting back to an lpn two at some point in the future and so the the question there is then do we again challenge when they switch back to l p n two and then again appeal and then again after our appellate briefing is submitted they change it to lpn eight again because the the beadle emmott epidemics are by their own nature cyclical so we happen to have the unfortunate predicament where our timing of appeal is not time to correctly to the reasons and for the two thousand and eleven yes your honor that is correct and of course the second part of mootness is whether there is any effective relief that can be granted and of course the only real relief or asking for here is a remand to the district court to set a schedule we're not even asking for a specific finding a specific date all we want is for the district court to order us to negotiate and set a schedule and have a schedule for stuff they did write a lot of stuff your honor and so our our main argument here is they should not have represented that there was l t n one species because there weren't there were no lpn one species so that was a false representation and then the other explanation they gave is that there were other lpn two species that somehow were more important than white bark pine and so what they should have done in their decision is explain which species were more important and why and that's what the california native plant society district court decision explicitly says when you have a bunch of species and they're all the same number you need to explain further why one is more important than the other and that's that's all they would have needed to do they cite to this top forty list but as we noted in our briefing that's a boilerplate citation and not a single one of the species on that top forty list was an lpn two that was actually listed in the fiscal year two thousand and eleven ok so number one they say that there are number ones and there aren't any parameter to you say that they should be required to give us at least a rudimentary comparison  i'm not sure that i know which case that is your honor right but this case yes that's what it is so my question was does that give guidance as to what the agency think that case does say at four sixty six said third at ten ninety nine that under the statute there the service has to identify proposals for other listings that preclude listing and it expressively said that that determination has to be in the decision itself and so in that kempthorne decision this court did uphold that plain language of the endangered species act and require an explanation in the decision itself is thank you and unless there's any further questions let's hear from the other side and we've taken you well over but we will give you a chance respond thank it please the court my name is robert stockman here on behalf of the fish and wildlife service with me a council table is michael mcgrady who represents the state of wyoming i'm going to aim to speak for about twelve minutes and to leave three minutes for wyoming  o i'd like to begin with movements and after discussing it i'd just like to make three major points on the merits but the good news here is that mountain pine beetle epidemic is subsiding and as a result the service reasonably changed the lpn from a two to an eight which reflects the fact that the threat is significantly lower and so when the most recent candidate notice to review the service made a new finding that this was warranted but precluded and i want to emphasize i think it's a mischaracterization to suggest it's three paragraphs first there's three progress about the white part pine status but then it cites the assessment form which is also available on the web site that then details all the scientific evidence that supports this including forty studies or more than thirty studies that weren't available at the time we made the original decision and then there's numerous pages that go to the other findings that have to go with warrant of a precluded about what is actually precluding work on it and are we making expeditious progress and so it's simply not the same case as it was when they originally played their claim downs of the issue that bothers me on mootness is capable of repetition but of a thing so how do you respond yes your honor so i think that would that exception does have a role to play at times and one reason we didn't move to dismiss based on the four prior scieno ours is that they weren't significantly different and this is one of the things that you know trying to understand this court's precedents and how it deals with new agency decisions that come out after the year a challenge decision is when the new decision is capable repetition yet of any review and is similar in the same exact ways as it was was the same exact procedural violation the court will invoke that doctrine but when the new decision is different and not and i'm going to use you use different language in different cases in ramsey v v cancer the court declined to apply that exception where an agency will be basing its rulings on different criteria or factors in the future and matter of bunker you decline to apply it when it was when the two things weren't manifestly alike in america lumen and company this court applied refused to apply that exception when the major issues might not recur so the key thing here is the situation has changed enough that their claim that their claim is real that the two decisions are different enough that it doesn't make sense for this court to try to litigate the two thousand and eleven decision  difference between today and then is massive and this is a cycle that apparently to be extended cyclical is well over a ten year period so the question is is it going to recur litigation takes a long time ten years is  the other problem i think is that you know you can't grant relief as though it were a two today when it isn't well we can say that i mean if we would include this that when it was a two that this explanation was inadequate and that would be helpful if the beatles come back it would probably also be extremely helpful for any other two listing that gets awarded by br it would be very unhelpful well it would be unhelpful to you because you'd have to give more explanations but it would be helpful if that's actually the right answer but less resources would be devoted to listing the resources will be taken from listing to prioritization and that goes to the merits and i'll get there but i'd like to stay on this first i think the reason it doesn't work is in this report noted in louis the continental bank which is that when the when the when the theory the plaintiff has been pursuing the entire time no longer applies to the plaintiffs you can't applied you can't issue declaratory relief you can't give relief when the plaintiff no longer falls into the very category they were litigating on behalf of but of course that's the whole purpose of the two linked doctrines of capable of repetition and evading review and voluntary cessation now there's no charge here by the other side that the voluntary association that is disabled a change in the listing from today lives undertaken in bad fa the new decision superstores that's exactly what happens when you're doing capable of repetition your debating review you look at the way it was rather than the way it is it is the way that was and the way that may recur that's exactly what happens we're capable of repetition you know debating  and but normally when the court does that it points to a reason to think that the plaintiffs will once again fall in like once again need the relief offered by that determination and so normally right in back in biodiversity this court applied it because the plaintiffs had a long history of bringing lawsuits about the exact same issue and it got mooted out and in characterizes court applied it because the plaintiffs objected to the same exact procedure a flaw each and every time but i'm not aware of any evidence and they put forward none that they have brought claims about other lpn to species they didn't file the petition it's case i mean it they they but this is the species they are concerned about and so i just don't i think they have to make some showing that the declaratory relief they want will apply to ben while the white barked pine still going to be there it will submittal comes back yes but that's that's very speculative it's very strange to offer  declaratory order on a speculation about something that may occur and it is it's more than a speculation it's a statement the your agency has a self made of the sickle nature of the beetle infestation but it's not clear over b s that is they were i mean this was a unique they are cyclical but this was uniquely bad epidemic and we don't know for a fact that that will recur i think the other dilemma here is that on anything they actually make them worse off because this is now an lpn eight and you know that the agency issued its work plan in the last month and it's not binding but it hopes to get to the species and by school year two thousand one teen but if you apply the theory that you have to do you choose first that may push the white part time back so it's not clear that order and hitting them declaratory relief would actually be good for the species it may actually be bad for getting to the species well who said anything about making the li number the absolute and only criteria related well that's not the rule no and not the rule and i'm not sure that's really what they said the rule is that it is an important factor and i think it's so moving to the merits i think it's moot but moving to the merits i think that it's important to look at what this court said was actually required in these determinations and healing and yell like frog and the court force the agency to meet the statutory requirements and what the statute says that the agency has to find is that work is precluded by pending proposals to determine whether any species has endangered species or threatened species and the agency also has to find that expeditious progress is being made here the agency thoroughly did that there's no question about that they want to add a third category to me for interrupting did the agency make a mistake in saying that there were category ones also it is in front of them the agency didn't actually say that and what did it say here's what it said i'll read but i'd also like to emphasize this is an argument from the reply brief a lot of their arguments are from the reply and were not presented to us and that is fundamentally unfair and answer the  go through the whole reply page by page and propose listing determinations for those candidates species with the what are you reading from there i can read along except of record page one sixty seven so it's a little slow down slow down i'm old and i'm slow ok so sorry right where are we looking acceptor of record page one sixty seven ok handwritten i'm going to provide i've got to find it for so excerpts of record and then i might have stuff maybe organized a little bit differently is this in the federal register yes that's the original findings so what date the federal register nineteen two thousand and eleven july nineteenth ok hang on so two thousand and eleven and what page of the federal register with it was on page four forty two thousand six hundred forty nine forty nine ok but it starts on that column below for the above reasons funding a proposed listing determination for the penis of a college is precluded by court order in court approved settlement agreements and listing actions with absolute statutory deadlines and work on proposed listing determinations for those species with a higher listing priority i e candidate species with l p n s of one or two now here's where that gets confusing because it is nice means that it is higher as someone has written these brief it's actually very hard when there aren't lpn ones to know whether to describe higher priority actions as ones in twos because those would be higher priority or just is to if you only say to people say well wait what about the ones and  if you say it once in two people say but there aren't any ones so i think that they're suggesting that we made a finding there were ones but i think this is just about the difficulty of trying to express that idea i'm i'm inclined to agree with you although it doesn't part is when you get to excerpts of record page one seventy three one seventy one or one seventy two this is in the federal register forty two thousand six hundred fifty two it's ok to hang on to forty six thousand six hundred forty two thousand six hundred fifty two ok i'm on that page so this this park has the tables that walk through the various things that are getting priority over the white park pine and it identifies why they get priority first year of action action subject the court order settlement agreement then you have actions with statutory deadlines then you get the high priority listing actions and then it lift each species and identifies the l p n s for each of the speech each of the species within those packages and what you see is that of these twenty two all but two of them have at least one species is an lpn of two and the last two are the miami butterfly which merited an emergency listing the last two where are of two they're there mixed in with the others because because they are just as important as the other yeah so which ones are you talking about the miami butterflies the only one is one of the only ones that had an lpn of three too fast sorry funding the footnotes indicate when the funding began which that's part of the explanation here is that when we started work on something before we don't stop work just because a new petition came in the door and here this was funded by prior years and so we kept working on it which footnote three indicates and the same is true of the only other species with l p n s of three which is the punch it sounds very species and that's the last one in that table just doesn't sound like you're from around here it's puget sound sorry i'm not i'm from the east coast i apologize after peter puja distil you know you know peter puget and if you look right out there that sound it's beautiful so i guess the point i'm trying to make is that where we break down the details is not in that opening which is true is sort of a boilerplate which makes sense we have assessed set of rules that we follow but in the letter in each of these decision documents we lay out what gets prioritized and it's clear from this that l p s play a major role in that process and i don't i mean they they will come out and admit it but the main thing they're trying to accomplish is saying we can't do packages where there is a higher lpn which would really slow down the process program i mean you're talking about a higher lpn for one of the species for one of the species because it seems to me i mean i would have said the arizona plan conant has it make it either but they do have one here ishmael oh i don't know how to say that the next two words lpn to the bottom exactly and this is the thing that is sort of going on is that we're doing lpn twos and then we do other species that are like them that has similar threats are in the same geographic area to be assertions and they're basically saying you can't do that because you still have the white bark pine and that's where their rule of law would take us now and that's not required by the statute or by the regulations the fact it does not say that it says you have to prove it's actually precluded by pending proposals it doesn't say by pending proposals at greater threat congress specifically rejected that option because they knew that it would lead to a whole i mean there's a bit of speculation but one thing it would have led to is a huge amount of extra litigation about our priority scheme instead of about getting things on the list and when the agency promulgated the lpn guidelines in one thousand nine hundred three they said we retain flexibility because we want to be efficient and we want to consider exactly the factors we consider here have we already spent money on it is it can we do a bunch together and they got comments from numerous environmental groups saying that's a good idea and so if the law required it then yes the court would should say you have to prove x but the law very specifically doesn't require it and congress very specifically chose not to do that and so the court should impose a procedural and substantive obligation that isn't in the statute particularly since as a practical matter it would have very bad effects i mean it would di a lot of resources from our listing getting things on the list to prioritizing and one more fact i'd like to add and i'm using up a lot of my colleagues time which i feel bad about not only a lot all oh sorry you finish up and then we'll decide whether the politeness your wyoming calling will be held against him though i guess the last one i guess like to make is they suggested this was a black hole the two thousand and fifteen c n n wire shows that we've gone from two hundred fifty candidate down to sixty and that's well adding tons of candidates we've done two hundred twenty species well congress wants with this preclusion determination is for the court to make sure we're not foot dragging and i think both the original finding and the new finding so we're not ok and in fact as i understand it the new findings from two thousand and fifteen will not have these if you will findings that they have a deadly agreed to that you are suggesting in the prior findings about how many were under under review how many had been done what you're going to do next the new will have a new set saying we've done all those that we had in the prior i believe you're referring to the settlement the m t l settlement we are finally finishing up the m d l settlement which has been a huge success and that will no longer be governing it but it is true that played a major role we were under court order and we prioritize those but that also got them off the candidate i hope to not take the full three i just wanted to step back a second and sort of bring in what something my colleague was was indicating and that is that the endangered species act does not require the agency to operate on addressing the worst first that's not found in the statutes not found in the agency's regulations that's what they would like and that is the goal however practical purposes the agency is given that discretion to determine which species to work on and that makes practical sense because you have to remember the agency also has an independent obligation outside of this petition for species scenario to identify those species that could be threatened or endangered so they have their own independent obligation to be working on that stuff while at the same time there's this other citizen petition provision over which the agency has no control when that petitions coming it have no control how many species will be under that left or how complex the problem will be presented to them and so the agency should be afforded that discretionary option of determining what species to work on and when what resources to apply and not so the predicate decisions you have to make whether you're looking at this is or looking on the merits as a determination whether the endangered species act requires the worst first of all the one hand you have while less institutes particular argument that's not entitled to deference and is very rigid and then the other you have the agencies interpretation that is entitled to deference and provides that flexibility and efficiency congress intended in the nature of species act therefore wyoming asks that you affirm the district court thank you that's two men's i just have a few points your honor first regarding the government's representation that that in the past there was a uniquely bad epidemic that's false their own exhibit thirty three says quote we anticipate future epidemics will be more frequent and severe so it's going to get worse second we are not arguing that of course the guidelines for listing prior numbers are necessarily enforceable in every case what we're saying is in this case at e r one sixty seven the agency said in their summary paragraph funding a proposed listing determination for pinus i'm going to do the same thing i did your colleague i'm on page one sixty seven where are you reading from your own i'm reading at the third column at the very top it starts at the bottom of the second column in the middle of this let's zoom sounds that we just read to me exactly and i've not read this several times in preparation for the argument and i'm reading it again ok you're and then i won't repeat it but it does specifically say species with l p n s one through two and i wanted to respond to your question of why that boilerplate he gave it to us in english i did but that really means ok bet that he is that's an explanation with a higher list of pardew's that is one two and it doesn't say there are in existence as we here contemplate listings one doesn't say that not getting to number two because we have some number ones and the reason we disagree is because in other words about preclude a determination such as the sage grouse they say i e entities with lpn of seven or lower in the wolverine they said i entities with lpn five or less so they do change that sentence to link up to the species that they are talking about and i just wanted to make that point your honor in the addressing his point that it's not a black hole because they recently added two hundred twenty species they only did that after many years of litigation because litigation seems to be the only thing that spurs the agency to finally issue determinations for warranted but precluded designations and so i would just like to end here today by saying that if the court orders them to issue a rule they will do that they will request funding and it will happen if we don't have a court order that says they need to issue a rule they're not