report don well for institute for wildlife protection i represent a group of scientists who are trying to protect them on a stage where else the institute has submitted five listing petitions to the service for various species and every one of those five has been delayed illegally the case this case concerns of the titian salute them on a stage where else under the e s a and there are three issues the first relates to delay the on the ninety day deadline for making an initial ninety day finding we are not in this case challenging that regular or an initial ninety day finding the circuit is whether plaintiffs can challenge the emergency listing denial made by the service on which they've already made a decision the third is whether intervention was properly while it's the first issue the delay issue the controversy concerns the phrase to the maximum extent practicable in the statute or how so what is the status at the moment we understand that it's a subsequent to the filings think we might be able to get injunctive relief for the repeated pattern of delays for for other petitions if if you were not successful in your challenge him in the right way and designated so you could have a permanent study they initially said no later they said yes but then in the end it didn't come out the way my have liked what would be the relief on your second claim the second plane their service can enter an emergency listing at any time now but i think the point is if if they already have done what is in effect the study that you were doing or the twelve months and come out negative to what you would prefer what would be the point of now having an emergency listing at this point in time which is way after your initial emergency listing an emergency that would be the march listing yes or on ok well actually we think that the the finding they made on emergency listing that was published in the federal register is exactly the same decision that they had made before and i have specific points i can speak to that understand is a category which includes the monks the grass listed as and the species that happened but did not happen here are i'm sorry to interrupt but that would be the greater sage for else that has not happened well what has happened made a finding in a federal register that denied protection for the model sage grouse that was an initial ninety day finding that is the sort of regular course of things not the emergency in that finding they also have as i recall two paragraphs that simply re states what's in the petition and restates their decision that they made by letter and that's in the excerpts of record reader didn't the service make a finding  species that includes this particular unit which is a we think a distinct population second that's more of a substantive disagreement you have i'm just trying to get the procedure down but in doing that haven't they in effect made a decision no because that binding was made on the entire species this is a tiny segment of that species which is included in that finding we don't think so we didn't and anything that is that unique and rare and different genetically or or otherwise about the model sage grouse is diluted within the greater species that's why congress included these three levels of diversity that it sought to protect of course i do know what you confusing me because i can understand if they're lining on the greater stage grounds population might not be as precise as you would like that would then apply a particular species can't find any findings within the greater sage grouse finding from the fish and wildlife service that relates specifically to them on a stage where else has a distinct unit they simply decided that they're going to explain away ok that's right my question still remains if in their view they looked at all the sage grouse which includes the minus age grounds it seems to me your remedy is to appeal from greater sage grouse and included in that look a review of the model sage grouse as a distinct unit then that would be correct but they did not do that well in print your point of view i that correct exactly which nothing in from your point of view nothing has happened with respect to your emergency your request for an emergency determination that's right you are now i think the government is telling us that they thought they were acting on that is that  we are we this reading i don't see that in the briefing for the greater sage grouse finding which was made just of weeks ago they think they reconsidered it when they issued the filing on the model sage grouse as a result of our suit we think that's exactly the same decision and let me explain what i meant let on that point then if we were to determine that their decision had been made within a practicable period of standard then what you would like us to do i assume is to review under the e s a whether that determination supervision we think that review was proper under the e s a because it's a mandatory action under g one c and we don't agree with the services  twenty eight j letter which relates to the lack of a discreet duty under the a p a and here this is a very important aspect of this case the decision was already made so while they may have to question as to whether or not to make a ninety day finding that's the initial regular finding that the emergency listing finding while they may have discretion as to whether or not to make a high as to how they make that finding we think it's a mandatory duty that when a petition comes in they have to act on that criteria by which they have to address the petition would be reviewable is that correct exactly are however the district court didn't undertake that review extends its on the record would it be up to us to to this morning i'm representing the department of the interior with me at counsel table and mr wayne how of representing the state of nevada and i will be speaking for seventeen minutes and he will be speaking for three there are two issues primarily here but i'd like to first off addressed some of the underbrush questions that seem to be confusing the court and and i welcome more of them if i may first i'd like to address the chronology of the lawsuit and the decision that was made in this case and then your honor as to the question of the greater duration of the complaint but the complaint was not sufficiently amended to show that there was any challenge to the december two thousand and two determination in other words the district court and the government were passed by the there was just the advisory made a remark that what you were really fighting over was the december letter and under liberal notice pleading rules and said the complaint is conform to the evidence and to the only letter that anybody's really arguing government were expecting but in fact they removed a critical provision of their initial complaint which was challenging the it's section four point seven it's on the excerpts of record of page eight i believe and it's basically it's basically the one section  this case that's where that issue with parker will be brought up and it is possible and though i am not going to be speaking to this isn't a form of authority to matter because that's not the case before the court it's possible that that could be an issue in the greater sage grouse proceeding but i don't which was the finding and i have two questions and there you said that he can even if we determine a technical pleading ground that that wasn't covered in the second claim that he could still challenge it why isn't that ninety day finding in effect overtaken by events on the later finding of the greater sage grouse which includes the  point does mr weber have another opportunity to appeal that determination as to the ninety day finding nor as to whether or not the man always included in the greater that turns i more you may thank you very much court my name is wayne howell i'm a deputy attorney general from nevada and i'm here today to speak for the nevada department of wildlife in this matter and in my three minutes i'm going to try to make three points but the most important one i want to make is that nevada has an does have a right as a but you were grading them vention were you know i'm sorry you were granted intervention yes rather and you could've been granted invention on the lower standard could you know wildlife and the courts granting of the permissive intervention was not an arbitrary capricious decision it was a decision made in good judgment based on that strong interest nevada nevada has when when a species is listed the state loses authority over that the federal biologists take the reins from the state biologist and from that point on  decisions are made that have to satisfy the federal government and that's a very significant thing for for state i'd also point out that that listing contrary to  institute position in their briefs has an immediate effect and that's why they're in this fight and one of the effects is preemption of state jurisdiction and that's why nevada is in this fight so to just be brief how does the that or read that very recent determination about the greater sage grouse do you have a different point of view from the federal agency well maybe i can just clarify that the stronger and there is just our state biologists know that there is a difference never characteristic but that's not the only criterion used to determine whether there's a distinct population segment other criteria that include behavioral behavioral differences morphological differences geographic isolation of the proposed d p s and on those issues there's no clarity whatsoever our state biologists are researching that as we and terminated in the negative on the basis of those factors which i just discussed and what with that i would just ask for the decision to be upheld and i thank i think further from the federal government very fine mr webb you have reserved time let me make it very clear first of all that congress protected distinct population segments of species for research right in the statute as well as our subspecies protected and the reason for that is that those are sub components of  that december federal register denial of emergency listing and that is incorporated in the claim to which is the one we're talking about here a paragraph five point one that's an easy or forty six i don't know what else to defend it could ask for maybe you know congress that it was very important to protect subcomponents of the species in fact the original endangered species protection acts back and i believe it was nine hundred sixty six or perhaps sixty nine did not include that as a specific levy had used terms like substantial information that related to the regular ninety day listing they should have said we will reconsider your emergency listing request later if your example is a simple declarative sentence no no need to do anything more than that but they didn't do that they made it look like they were not going to reconsider it for example they said that they wouldn't take a but they had made an initial finding an initial review of the petition and that's up in the i think the second paragraph of the so the letter states that they have done the initial review but they have not made an mitchell finding and may not make one for quite a while when if we accept your position  a subject matter isn't to mr dismissal on for lack of subject matter jurisdiction that's what we want to do is go back to the district court let the district court make that decision and then it may or may not be appealed later on after the summary judgment