good morning my name is eric lipton stain i am counsel for the plaintiff defenders of wildlife and with the court's permission i will endeavor to save a couple of minutes for a bottle to claim what we think are narrow but important issues of the endangered species act it may be helpful at least from plaintiff standpoint to specify what we think this case is not about we don't think this case raises some general policy question about whether threatened tortoises are more important renewable energy projects as the government has acknowledged there are many places that these projects are constructed that don't involve occupied habitat of a threatened species in fact the second thing in this case conflicted and i've spent a lot of time actually looking at some of this your honor so it's outside the record but doing the kind of work that that defenders does in that i do that there are many degraded areas including on land management lands that don't involve the conflicts with at least listed in danger threatened species they may involve other questions but they're far more degraded on i think the critical thing about this case is this is it's occupied habitat by a threatened species i think i would say that this case is not about at this juncture is whether this project is going to proceed it's proceeded the project in fact has been constructed and so the narrow question that remains and this goes in this case  since the project is constructed tell me about the relief let's just say we agree with you on any part of your argument what relief can we grant at this point since the project has been construct adopted or certainly considered after the biological opinion was reevaluated in fact in that case they were somewhat similar i think concerns to then lead the court to send the biological opinion back and let me give you a very concrete example of actually two things that could happen here ok as your honor knows we've raised questions under both the jeopardy and the critical habitat part of section seven we've also raised questions about whether or not the what's called the re initiation trigger for doing to consultation if it turns out that this issue if we if we agreed with you on some aspect of this there may be something that would happen as a result it would stop the project which is already completed that's correct or rather so you know i mentioned a list of things do what specifically is law so the rebound would be basically to reconsider aspects of the biological opinion so first of all eyes are on our nose we've argued that this biological opinion specifically made a jeopardy finding contingent on a determination that remedial measures could be adopted in the event that the corridor is constricted to the point where it really is impairing the survival of recovery the species we believe the biological opinion is just explicit about that so if in fact the there is a rebound the fish want to suppress it could at one level say what the government has basically come in and said in this court which is not in the biological opinion and that is well that's not really crucial to our analysis we've decided that we either are framing that we put in the biological opinion is something we're going to distance ourselves from it isn't that really the key on that point because under our national wildlife federation reconnection green fisheries service we  biological opinion unreliable and not correct i think that it's a correct statement of what happens when you are saying we don't think we think a song likely we're going to have a problem and isn't that what happened here i don't believe it is your honor if you look at excerpts of the record page one hundred eighteen this is our excerpts this is the conclusion of the biological opinion and the conclusion is to summarize we have concluded that the proposed actions are not likely to appreciably diminish reproduction numbers or disturbance of the desert tortoise in the action area or to appreciably impede long term recovery of the does a tour yes the government harps on that sense the next sentence says the following integral to that conclusion is our expectation that the  do today that would be extraordinarily valuable if this or in the either or scenario comes to pass so for example your honor in terms of other habitat that you might want to preserve or try to preserve if in fact this monitoring that they say is going to be implemented over the course of years if not decades reveals that sure enough we have genetic bottleneck now or we have demographic impacts and these are closely related but they're not exactly the same one  population kind of impact one is a genetic impact if in fact the monitoring demonstrates that we've got one of these bottlenecks going on there may well be the type that you should basically be taking a look at now that you could put into some kind of protected where there may be trans location efforts that you could make years in advance to plan for so and this is not just me talking in terms of what makes sense is a common sense of the matter given the way they formulated the biological opinion  assumptions because there's no other way to know certain things because they haven't happened yet i would have thought that you would been really happy that they had provided this exter level of if you will engage meant in the likely event that something were to happen we would know for some time it's about genetic changes over time it's almost darwinian in a way i'm having trouble faulty them for saying like this is what we know now that it's five that this is not going to create a problem but we're going to take this extra step we're going to monitor this very carefully and if we find down the road that there's something that's happened  we will take remedial action how do you fault that i mean you know like you just try to stop the project which is too late now why do you object when they are doing that extra little bit to actually protect the turtle in the event there are such changes your honor i think the premise of your question and just to be answer a question we don't fault them for the monitoring part but the premise of your question as i understand it is that the biological plants opinion said we don't think there's going to be a problem  i know you're on recently or what with section seven and the standard biological opinion is written i think in the way your honor just let's just state it which is we don't believe there's a jeopardy situation but as a protective matter we'll take a look and we'll do that in fact three initiation obligation imposes that i think a fear when i read that case in northern securities involving it was montana somewhere where they had a mining project where the everything was based on an assumption there were no tests there was no anything and we found that didn't make it because there were there was simply no evidence as they actually had looked at it this is very different here they really did was it five years they've spent on this project so far and they went back again and they did all these testing it's hard to imagine what more they could have done this biological opinion that they did other than change the language which i you all are really good lawyers and i know you read these things very very carefully but when you look at the totality of it you know what more could they have done given the current understanding of the circumstances i appreciate that your honor i really do think and again i'm sure you're already has but he were to take a close look at how they formulated the conclusion which i really do think is different than most biological opinions you may have seen before where they really said they were and the bankers on giving the securities the pin well they said we really don't know what's going to happen that we have these grave concern whether this carter is why did off and therefore we're going making a call to let it go forward we're going to monitor and what we're saying very concretely is under those circumstances it's not consistent with the plain language of the endangered species act in this kind of situation which impossible to know exactly what's going to happen because you're talking about genetic changes in these species to accommodate narrowing corridors like a very logical and important objective but unless everything's going to grind to a  perhaps at some people's desire the reality is you have to say ok based upon the current assumptions which and the current science we think this is the best that we can marsh case i think the case i just brought up at the beginning the center for biological diversity would be pipelined case all say that if the no jeopardy conclusion hinges even in part on future measures you have to make some effort are reasonable  w that the other is simply it will a prophylactic measure to protect the tourists in the future in the event things change from what the what the determinations were made it made it right now and your honor if they had actually said it that way in the biological opinion as opposed to recasting it that way for them well you need your lady they didn't say that they said integral to our conclusion was these remedial measures like could i just add another point about this your honor because like i appreciate the dialogue but i do also think that it's critical even your own analysis that there has to be some clear trigger for when they would reinitiate consultation and we have to point it out to proceed to look clearly at the biological opinion itself it says we're going to monitor and we will be able to detect when there has genetic or demographic change then it says if those changes are attributed to this project then we will look at refute remedial measures a very modest request for making a given everything your honor just said i think this is totally consistent they that we will use these factors to determine whether or not there has been a change but then they say if the changes are related to the sober states often state my projects and if you look at the record citations we gave b l m went back to the fish watchers and said can we have further clarification of how we measure whether or not the changes due to those projects and there was never in any answer to that and we would certainly have just let stage be a lot more comfortable and i think be consistent with the law even  have you sat down with the fisheries service and try to work out the language that would be acceptable to both your honor we would be happy to do that if this matter reminded to the fish and wil able to come to some resolution of it if i want to remain we have well remained we think because they haven't addressed what's crucial to ensuring that there's not likely jeopardy would be the appropriate vehicle for doing exactly what your honor just said because on a re  participate we could bring scientists who know about these things we might be able to work this out if we don't have that we're not going to get the time of day on this project at this point if i could just spend one moment on the critical habitat point which we haven't talked about because i think this one really is in some respects perhaps more clear cut we gave you the fence hypothetical in their briefs which we think has never been adequately answered their position is if you draw a fence all the way outside critical you know an inch outside critical habitat you never look at weather and it completely cuts off the species ability to use the critical habitat you don't analyze whether there's an adverse modification or effect on the critical have because just a little time let me just say i say i agree with you about the critical habit second reason is you could have an impact on the recovery potential of the critical habitat unit your honor that doesn't rise to the level of an impact on the species as a whole the biological opinion admits that there will be an adverse effect on recovery but it has no  is on whether that rises to the level of an impact on the recovery unit and different pincio says i think that is the law of this circuit under give attention to that you have to have a separate critical habitat analysis because it's a different kind of analysis than the jeopardy analysis which is the only thing that's in the opinion and let me just if i can add your honor they certainly did not say the minimum is a fact i think a fair reading of this biological opinion is that we were very concerned about the possible of fact even if we all of them only read it is not a jeopardy finish and i think this is a crucial point appreciate your bringing it up i don't think you could assume that they would reach the same answer if you were to remain and i think that really is ultimately the harmless error question and we you know for all the reasons we set forth in our brief we don't think their position federal law police now i think the issue here is whether the biological opinion is reasonable the biological opinion represents a scientific judgment by the fish and wildlife service but this project including the impact on the corridor is not likely to appreciably impede the recovery and the pinion itself actually makes the higher threshold more protective finding related to recovery in this case i want to address a couple of the issues that council has raised first first on the either or  sentence actually when you look at the either or sentence itself and there's two reasons why i don't think that this that this sentence invalidates the biological opinion first you look at the center itself and then you look at the context in the sentence itself it's not talking it doesn't say either there's going to be no jeopardy or if there is jeopardy we'll fix it later when the sentence is talking about is something far short from jeopardy to talking about any change in the demographic region ethics to belittle at all in the tortoise's of they'll be able to to detect those changes and that does not even talk about populations being permanently severed it's certainly not talking about jeopardy self now when you look to the context of the opinion and i think if you're on it as you said th shows that future remedies are necessary then that's something that they're going to employ but on the page that the reality is that the science in many of these areas particular with respect to endangered species is  evolving there's a lot of research undertaken right now but the reality is if i understand it correctly that most scientists cannot say with specificity that for example if you've got salmon coming down a particular river in a certain amount of silt that over a period a certain period of time they'll develop different kinds of gills and therefore change them because it takes a long time to do that so what they do is they run models and they prognosticate and they say that it's our opinion that they don't know that and what i find in these biological  opinions at that it just filled with assumptions but there's no other way to get there because there's no science to back it up doesn't mean it's wrong it's just it's the best we've got it isn't that the position really of the government here is this is the best science there is out there we've met we've consulted we've done the best we can we think this is right we're relying upon it we don't think it's going to change but if it did the this is our backup is that your position yes your honor and that's the standard the standard the court does not require that the service have to justify its decisions with one hundred percent confidence and what it has to do is look at the best science that's currently available today and it did that and not only that but it made the findings the language in the in the opinion we did there's no need for every man here because the language for in the opinion itself it notes that on page one eighteen of the e r it beyond once you get past that either or sentence the service itself points to it in human rights a list of other reasons that support it decision for example it says that the solar project footprint will take less than five one five one hundredth of a percent of this recovery unit it goes on to say that the corridor is going to be able to accommodate a lifetime utilization area of the tortoise it also points to the numerous mitigation measures which the service believes one has kind of to vittie that there's that total over seven point two million dollars in this case so when you look at the entirety of the biological opinion it's clear that not only is the sentence not talking it's not dispositive on the question of jeopardy but it's also indicative of the of the conclusion that the biological opinion rests on a number of mitigation measures that have already gone into effect now if i could also and so it's technically may not be moot however this might be a case to consider prudential mood miss and i say that because the question is really is there are effective relief now theoretically there might be medications but in this context in this case what they're asking for is to u for the service to reopen a process but that process is actually ongoing it's ongoing because of the extensive monitoring that's mandatory has already begun and that monitoring program is quite extensive far from being vague and not out there as possibilities and it's almost like you know it's capable of repetition that same concept that you would find in some other context i don't understand why it would make any sense to find any potential something like this because there is an ongoing review or very committed to the environment and will be monitoring as they should so it seems to me the  of what what is there left to do and in this case the monitoring that in place is going to tell us whether or not there's any changes at all in the tortoise population demographic or genetic and if there are any changes that are related to the project then the fish and wildlife service will reopen the entire consultation process again and assess what to do now council says well that's not specific enough we don't know how they're how the service will decide whether something is related to the project but actually the re initiation notice here is very specific and first i want to note the biological opinions don't have to contain re initiation notices for new information that's because the regulations themselves set forth the criteria when  information should trigger it but in this case the service took one step further and it noted it least one example of when it would really initiate consultation and explains that it's going to do this extensive monitoring study there are going there have now been flirt plots in the i think paul valley one plot is going to be is at the location of the solar project two plots are at either end of the corridor or and ten other plots are at different locations in the ivanpah valley areas of development and also areas of control sites they're going to be regularly three to five years genetic taking genetic samples of the tortoises in those plots they're also going to be using radio tags to do it to monitor the fine scale movement of the tortoises so you have both the short term and the long term changes that are being monitored and if the service by comparing those plot sees that there is a change in this area it's related to this project that it's going to reopen  example the monitoring information yes your honor the u s geological survey survey is conducting this it's their job to put out this kind of information and they will be publishing that information publicly available at this point there's only been baseline that's been done but the the information will be available and i want to know that the the biological opinion itself talks about this extensively initiation process but also for more information and to see the actual plot to see that they're going to if there are no other questions on the new jeopardy provision i'd like to turn to the critical habitat question so on the question of critical habitat the appellant has drawn up this hypothetical fence example but first of all this is that is not this case here the whole point of the biological opinion was to assess population connectivity and to ensure that this project was not going to be functioning like a fence they concluded that there would be continued tortoise occupancy and movement through this corridor or there's not going to be a fence here and there certainly not going to be a fence around the critical habitat unit which is miles away from where this project is i think it's uncontested in this case that not only is the project miles away but the project will not have any direct or that my question is even if that's true is there a concept of harmless error if you will in this area of law and if so what case law could you point us to to that in this case even though the service didn't talk about adverse modification of critical habitat if this court were to give any way to this fence hypothetical and if the court required the service to analyze hypothetical fences outside of critical habitat this case with a band because here the service analyze the project function like a fence and therefore you don't get to this question of whether the habitat is actually  i think the general harmless error lawyer but apply it we cited a couple of cases that aren't specific to this area but just the general idea that the agency's decision and the reason make reasoning of the agency's decision shows you that there is no different result that would import into the environmental area the concept of harmless analysis in some limited circumstances in the environmental rather than the administrative law area there are cases that that substantial is that your position it depends i think in this particular case you can because here even if you accept this hypothetical fence you don't you have the service that made this judgment that you will not have populations that are suffered once you don't have that effect even under their analysis you don't do that a as we defer to you all you give us your analysis if there is if something's missing unless it hasn't been analyzed and a determination made which may or may not agree with what the little community has that alice's that's all it takes that base thing here job of the service is to make its best scientific judgment based on the current science and as long as it's reasonable and this court can discern its conclusion from the from the record then that's sufficient in the same we water authority case that we cite in our brief that also talks about you know even if there are some issues with the actual language of the opinion that you can you can do that i want to close up on that in the critical habitat if i can and note that again we want to take a minute just to walk the court through that the regulations define destruction or adverse modification as a direct or indirect result that appreciably diminishes the value of the habitat so you have to have both you first have to have some kind of direct or indirect alteration then you look at the conservation value of the habitat what the appellate is asking for this court to do is to take out a readout director adverse that language from the regulation and go straight to assessing the con value of the critical habitat in the abstract that's not only contrary to what the language of the regulations say but they're asking this court to treat the corridor as if the secretary had designated the corridor as critical habitat when it did not and we think that that that not only leads to problems in how you analyze it but it conflates the jeopardy in the critical habitat prongs your honour's the biological opinion in this case is reasonable it was dealing with a challenging issue of science no to be the notion of harmless error into a case like this when the service has basically first concluded that there's it is not likely not likely to jeopardize the species on the one  to use the term harmless we agreed with you i don't think we're i don't think that what we're doing here is also harmless error as such i mean it except to the fact to the extent that what we're dealing with is in u ncertain science really i gather what i'm understanding you to say is that it may not be harmless error but given require it we investigated it we've done the best we can just count what your adversary is saying and because we think there is nothing that's going to come of it that is in fact harmless error that essentially what well yes i mean it is as the apple can and we downsize this project i mean we should be moved to and i don't know if it came through as clear as it might have but the the actual project is two to three miles away from a critical habitat so this fence analogy is frankly strange this is it's not like this project was built adjacent to i mean literally adjacent to or on the critical habitat it's not we'll off road vehicles would be going into critical habitat so you really don't have any direct or indirect alteration of the critical habitat at all that's not what this project's about so the only real issue are but really biological issues the connectivity future population size that's why our client was so willing to fund the surveys to participate and continue to participate in this project you know in a very constructive way so again i think that the government did a very careful think that what has been done is complete no other words the the government has analyzed this project it has used best available science scientific evidence and information  to to put this project together as it did and in the unlikely event that things strange there is a monitoring program in place it actually functions it's doing what it's supposed to do and it and you know these are actually not large animals they don't they don't cover a lot of territory and it will take years to figure out whether there are any adverse effects a but if there are we will know it when we see it because we will find that there is less genetic connectivity or the population size will  decline and it will be obvious that that further action may be necessary and we're willing to do that we're participating that way concert just out of curiosity why did you choose this place  specifically says that the loss of a single human it may not jeopardize the continued existence of the species but it may significantly reduce the ability of critical habitat to contribute to recovery and at the bottom of that page specifically talks about actions outside of critical habitat having adverse effect but in critical habitat that has to be analyzed gifford pincio your honor directly addresses the harmless terror issue in this context and specifically says that you have to be convinced that the procedure would not have changed at all in analyzing the impacts here if you look at this biological opinion although they include a critical habitat in the action area which is defined as the area where there may be direct or indirect effects there is no analysis at all even though the opinion following of page one thirteen of the excerpts of the record this is the project is likely to reduce connectivity within i've been pulled down valley and consequently the proposed project is likely to impede recovery of the desert tortoise now they reached the no jeopardy conclusion we talked mitigation measures to develop those can be incorporated and then we can protect the tortoise better and also keep this project functioning you know but we think counseling all of you for your your part of the argument we really appreciate it it's a very technical area of law and it's nice to going into conference to decide the cases and then we will come back out in the meantime we have law clerks here who are going to entertain you they have some dances and a little music that they're going to provide for you and then we'll come