traumatic and get their attention for the court is now setting that save the united states and the thank your honor may it please the court these consolidated cases address the decisions of two separate federal agencies the national park service and fish and wildlife service separate decision separate laws but they are united by a common thread which are violations of laws and deviations from the agency's past practice and a rush decision to authorize the atlantic coast pipeline which will cut through six hundred miles of private lands to national forests the appalachian trail and as relevant to these challenges the blue ridge parkway habitat for threatened and endangered species respondents raise a number of procedural arguments related to statute of limitations remedy standing we've addressed those in our briefs subject to the court's questions i'll intend to address those on that so congress flatly prohibited take of endangered species and created this narrow exception your honor for incidental take the unintended consequences of otherwise legal activities to make sure that that narrow exception doesn't subsumed the old objectives  agency did now in response briefing they suggest that our dispute is really want about semantics the tables the text the core obligation here the fish and wildlife service is to analyze the impacts that this project will have to to ensure that it will not undermine their recovery and their viability in the way in which the fish and wildlife service analyze those impacts assumed a small impact on small take of the number of individuals and that's how they are taking  this these impacts as habitat proxy they articulated a limit as a as a defective and begged but a number of individuals and when you take their post talk rationalizations but they've come up with an appeal that this is in fact a habitat proxy the whole him you know what he is considered to be a man in which you can determine the limit that can be established and whether the geographical basis can be so problems at your honor it has to serve a trigger function has to be clear and enforceable at the case that we cite most often and is it actually sit by the preamble of the regulation visualize as a collision says that agency can't be left with unfettered discretion to decide when it has been when the take has exceeded acceptable and this is a the purpose of the function the purpose of the limit is to make sure that if there are unintended consequences or if their analysis has an error in it the species won't suffer will stop and will go revaluate on appeal  there although the agency approached its analysis all these projects looking at individuals they've come up with this post hoc rationalization look at habitat proxy picture your question that's where it breaks down because they're crafting this post hoc rationale onto a document that didn't take that approach although both respondents agree that these limits are absolutely clear and enforceable they don't agree what they approach is they don't agree about where to look in the document that find it and they don't agree about the specific limits for individual species to request to look  there is a page in the record for indiana bat i think around the day site for you where there's a table i can tell you for example that it is the best scientific vailable evidence and visual search as opinion as of two thousand and seventeen that there are four hundred twenty five indiana bats in the virginia part of the appalachian recovery unit that's a very specific number it's in the record in a table that is labeled official eyeless of his opinion is that this is the best available science and populations are in the about i have no idea congress and what the regulations require is for them to distill all those assumptions and calculations down to a clear limit it's the test it's the confirmation that if we get it wrong the species doesn't suffer because of our map there we stop and we reevaluated so they have done that work with the indiana that they've come up with four hundred twenty five and we know they can do it for this project area we asked you to take judicial notice of the biological opinion for the george washington national forest plan revision in two thousand and fourteen that was prepared by the same biologist  license if you will to kill and maim certainly don't number of species who we know will be killed that's what it is really not about protection is about being able to put a they did it in the george washington national forest plan a clear limit seven indiana bats per year for activities including linear course like a pipeline including special use permits the crossing for this pipeline through the george washington national forest prohibition on the take of endangered species it's subject to criminal penalties if you kill one individual but he's an endangered species without this permit you can go to jail they created this exception and they put clear limits on it as judge  without those clear limits it now becomes an unlimited license to take these endangered species so all of congress as careful work and clear intent to ensure that the species stay on the path to recovery is undermined by this document which sets a right of way authority but the supreme court tells us point blank that that's not the standard so in brown brown and williamson at the back of a case we cited to you through court said you know it it does not matter that they  they say it's a statute of authorization not prohibition the same is true for all ten of the cases we've cited over and over again the supreme court this court have said when you have an earlier general authority that a part of broad category of activities and a later more regulate product labeling for cigarettes f d a tried to do they went back and they said we can regulate drugs tobacco is a drug and so that gives us the authority to regulate tobacco tax label supreme court said no congress chose to deny you that if the in the more specific statute inconsistent with the purposes of the wilderness area that's the same standard that the national park service points to its right of way back and says well if we conclude it's not inconsistent with the purposes of parkway we can authorize an oil or gas pipeline congress at national parks apart iris clearly stated if you want to run an oil or gas pipeline with it's construction impacts it's permanent scar and it's risk of oil spills and let's be clear what they were worried about at the time you have to come to congress and seek individual authorization and that has happened with every have is the court become for the federal respondents i'd like to clear up a few points of confusion and how the regulatory scheme or formulate in an i ts worms are there are three requirements under just go its so it is incorrect that the fish and wildlife service has not used surrogates for those speeches in the past in each of the cases where the petitioners present previous i determine if they can actually count those bats individually if counting them individually is a practical way to monitor whether to has exceeded that that has been authorized in the us which would be a violation of how listen we know that this species is in this area but it's simply impossible to detect this on the ground in real time and we're talking about one and a half inch bats that lived in caves and exploiting them are obligated you don't define small percentage define that small percentage what they need to do is in cases where there is a phrase used like a percent of individuals they need to provide a more precise measure that's exactly what they did here in the form of these narrowly defined geographic areas they don't survey after survey in the area and because of species biology and behavior it's just not feasible to expect the action agency to be able to find those and that feel so they could set a numerical blend it but it wouldn't actually lawler there is a clear and enforceable limit ok we are what is it a limit is the precise measure of these habitat areas if the action agency or the pipeline company were to do any activity outside of those areas or were to we're talking about here are simply impossible to monitor in terms of individuals we're talking about harm through a decreased rate of pregnancy for bats or increased rate of non nutrition and it's exceeded would be a violation of section nine and fish and wildlife knows these species biology they know their habitat and they know they are the fact that these species are just impossible to tact in the wild what about previous survey work was able to identify a precise number of bats fish and wildlife also used a surrogate you know they would do surveys from here to the end of time but that wouldn't change the fact that they're going to have to use a surrogate to monitor tape of the species in real time we're talking about one and a half inch bat and the form of tape that we're talking about is an increased rate of predation that is not if for example fish and wildlife were to say ok we think fifty bats are going to suffer an increased increased rate of predation that wouldn't supply a meaningful trigger to monitor take of that back because concealed habitat which is the case have used present usually are limited and they do they do that with five distinctly defined areas of habitat if any activity happens outside of those areas the limits of the i t a s will have been exceeded if activity happens within those areas that hasn't been analyzed within the i t a s like a different form of drilling that that's being used the i c s will have been exceeded and the action agency will have to re practicality doesn't turn on if surveys can estimate the number of individuals taken as i mentioned before you know even if they were able to estimate a precise number of bats or precise number of club shells this would fall into the actually set a meaningful limitation on state that's the goal tonight yes and that's what the habitat surrogates do page forty three forty four forty three four hundred two of the record they do that five hundred five five hundred eighty five meters of crete seven point three beehive potential zone eleven point two surface acres of ice a pot habitat and the limit is is there activity happening outside of that area in that species habitat or are there additional activities that haven't in fish and wildlife it's expertise as a biologist of surveyors they have determined that any level of hate within this area will not jeopardize the species and the petitioners do not challenge that determination and certainly they think that it will be a smaller percentage in the in the case of some of these species but the bottom line or purposes for creating a meaningful limitation on it is that they can't count these species there are not protocols that wall allow the pipeline company or the or the action agency ever to be able to count you if you could take one hundred percent in that small percentage of what we're sort of strong small percentage of what where that's the question fish and wildlife believes that for example only a my name is brooke smith i'm here on behalf of the intervener atlantic coast pipeline l l c i was hoping with your indulgence that i might start with the blue ridge parkway permit because there hasn't been much time to address absolutely right most of the issues but i do want you to answer th question you were with the government's understanding as to take means yes your honor there is no daylight between our positions we but we read the small percent language to be big and indecisive for purposes of monitoring take related impacts habitat is the circuit they can be measured along this pipeline route and if take occurs outside of those clearly defined areas along the six hundred mile route that's not permitted thousand in two thousand and four in zero the last time we surveyed in two thousand and sixteen you can find a number for the species for sure but the problem is the numbers vary and if we know that this species may be present along the pipeline route it's impractical both for to find it on the front end and from monitoring it on the back and that is the most critical component to us in this i t yes because based on the difficulty detecting these species because of where they live because of require constant inspection of this pipeline route by the applicant by the federal government by state agencies by the fish and wildlife service if any take is identified outside of these defined areas it is it is disallowed under the can see that you can you have to see beyond the surge you have attack correct correct well how will you know the on the ground well the surveys help us determine that there are unlikely to be present out of these areas which so we're presuming that even if you go outside of how do you do how do you know precisely when something be so dangerous to and so dangerous to an endangered species that the answer might be but take the american citizen that you can't do the activity it i carette but the conditions of can structure and require us to monitor to determine if there's a take but you won't know you may know you should know it you know you're going to sample born is this the if you kill how often how often before you start construction before when not doing that particular geotechnical forenames into cars terrain are required for e s a purposes before construction began but not during their a separate state are required continued geotechnical work throughout the construction project there are thirty three federal and state permits at play here all have protective measures to ensure that that the th resources to be protected are protected that the extent possible indeed the routing of this pipeline involved hundreds of reroutes and hundreds of miles every route to avoid habitat in the first minimize it in a second and then every one of these five species has conservation measures and protective measures designed to minimize the potential for take if i may turn briefly with a minute l three and eight which you've cited do not limit the types of right away is that may be granted by the national park service i think the mineral leasing act of one hundred seventy three is a bit of a red herring because it excepts national park lands from the definition  federal lands in point of fact the middle eastern active five hundred twenty has always accepted national park service land so it's not a novelty of nine hundred seventy three and there are situations where what park service cannot do under the mineral leasing act they do through their own statutory authorities oil and gas exploration is a great example it's covered by the mineral leasing at the park service can't apply those procedures and yet the park service as an entire set of regulations to deal with oil and gas exploration licenses or permits for right of ways over across the parkway land for such purposes under such terms and conditions as the national park service made may determine and that's exactly what they did here indeed there are fourteen other existing pipelines frost in the blue ridge parkway  the most recent three were approved between two thousand and two thousand and two all relying on the same statutory  the national park service reads it's right away authority to authorize they say this in the any right of way across a unit of the national parks any right of way at all they can do as long as they find it's not consistent but the text of the statute tells us and the legislative pipelines through national parks except when it has come in and said specifically in a specific part on a specific route you can have the gas oil and gas pipeline here so there's one question both of them which i get it right  your honor is the exercise to determine if there is impunity in congressional intent using multiple lines of evidence the text clearly the first and best if you find the text consistent with to if the intent is clear from the other lines of evidence for example legislative history congress set out to do in one nine hundred forty then that's still a clear definitive description of what they were trying to do what they were trying to do was address neighboring landowners not industrial uses of national parks which as council when it concedes would be a deviation from a century of practice to think that at that time in one nine hundred forty congress thought to open up an exception for i mean imagine if you remember that the congress dealt in one breath with oil and gas pipelines so we're talking about a gas pipeline today but this is also the consequences of an oil spill on a national park was in congress's mind every time it has turned down the opportunity to authorize oil and gas pipelines and that's why not to take you because your questions about the  getting but that's why even if you find it in big us even if you get the congressional intent is not clear we think it is congress addressed that in one thousand seventy three and the supreme court tells us to look to that later expression of intent  to as a limit on that earlier and biggest authority you have to apply it congress intent in one nine hundred seventy three because we don't expect congress to go back through and parse the united states code and find every general statement of authority which might be construed as an fact the congrats for statements on the senate report's house reports we all cite a quote from the same department of interior a letter to congress saying look we've been granting rights of way to neighbors to conduct residential and farming activities to get access to their land and we've allowed some of them to have access to public utilities will of course of course they'd want to do that that's the problem they sought to address and what the park service is asking the court to accept is that in that one nine hundred forty decision to accommodate neighbors they did something for the units of the national park system and the national park service told atlanta told her we have citing the mineral leasing act we have no authority to authorize you to cross the appalachian trail it's a unit of the national park system and congress told us we can't do that they could if