place the court i'm back an album i represent opponents oceanic and greenpeace and i will endeavor to reserve five minutes for about all this morning there are two simple legal questions i'd like to probe this morning the first is did the national marine fisheries service needed study to ensure that large scale industrial fisheries don't jeopardize endangered stellar sea on and the second is did the service mean it's judy to explain why it was rolling back protections the answer to both of these questions you know and to explain why i'd like to make three points the law does what happened internally in the agency count for purposes of determining what's appropriate and analyzing you know the upside is clear with you inside what case  an internal member or internal expert the same burden applies yes so that the regulation that's at issue is forty c f r fifty no two point nine and that regulation doesn't distinguish between internal and extrapolate says the agency that shall discuss it appropriate points in a responsible opposing view of the cases that have looked at this and western watersheds project cry and drink the court looked at both internal expert opinions and struck down that yes because the agency in that case had responded to those opinions it included the internal experts opinions and that in both wild west institute integrators yellowstone coalition the court looked at internal expert opinions to determine whether the service had met its t v under forty c f r fifteen zero two point nine in both those cases it determined that they had the agency it properly addressed the internal opinions but it didn't make any distinction between internal and external experts but let me ask you about the regulation itself says it starts by saying that final environmental impacts will respond to comment responding to comments from outside the agency because otherwise every time you have you know fifteen people giving input into a final decision internally we're just regulation the purpose of the regulation and i think the reason it doesn't distinguish between internal and external experiences is it goes to the purpose of nepa which is to properly inform the public at the environmental impact of the action intent from the agency and so there's no reason that the internal experts opinions shouldn't be made public in the same way that the external expert opinions are worth but here we have aside from your own construction of the regulation says we have to look good inside the park disagreement right to my knowledge you know that case first i do but i don't think it was a question in that case whether they would respond to internal expert opinions in that case they were just looking at external ones western watersheds project be crying break again looked at both internal and expert and external expert opinions and struck down the yes based on the agency's failure to address both of those opinions for twenty fourteen count these criticisms and so you know the data are really limited and acknowledged it and said we're just doing the best we can with not you know they changed yesterday knowledge the problem where are they changed the opinion was different in twenty forty yeah and if i could i'd like to move to the talking about the biological opinion itself  started from the same premise as prior biological opinions and that's that fisheries may be contributing to feline decline and from there the biological opinion went on to determine whether the fisheries measures that issue here jeopardize sea lions and that's what it's over a lot of analysis and while that overlap analysis relied on the same factors as prior biological opinions played a new test of those factors that made it harder to get at jeopardy now the service has been looking for many years the extent to which fisheries and sea lions are operating in the same times and places and going after the same fish what it did differently in two thousand and fourteen is that said even if we have overlap in three dimensions if there is low overlap or what the service calls partitioning in just one dimension that means that there's not competition i don't believe at that point but and if  if i just don't agree with your reading of what they did in the in the twenty four team opinion and if the overlap analysis is essentially the same in terms of looking at those four factors i guess they're not really factors propose four ways of looking at things then what's th the same but even if if this service looked at the same you know dimensions and applied the same test and in two thousand and fourteen the service still relied on data that its own internal scientists said it couldn't rely on the internal scientist said we simply don't have enough information to conclude that if there aren't sea lions here that means that they're not competing with the fisheries or if we don't have data  impact does it have on your kids the service has a duty to ensure against jeopardy and it has a duty to explain how it's coming to its decision in the biological opinion doesn't offer any factors on which it would come to its new jeopardy conclusion without its faulty overlap analysis and all but with respect counsel i my understanding is that all of the agencies and indeed you folks use modeling most of this is a mathematical calculation because the reality is you can't go out and determine what exactly happening right in just moderately that's all you're doing it  does a good faith but that's right you're doing in this case as my colleague has suggested there's a massive record massive record all kinds of data all kinds of information and modeling and at least as i read it you know that they are the actual text of what they said doesn't do violence to section seven of the say they're simply saying ok if you apply the model this is how we view it we think it's a little different than before but we don't think the species is jeopardize nine and realize you don't agree with that but i guess my question is since we are f r lat and we and we see that and it can be more specific and i put it in the brief but if you had to pinpoint it in what way did it change the way that it looked at the data so overlap between the fisheries and the sea lions it assumed that that meant there was competition what it did differently in two thousand and fourteen was it said that there had to be overlap in all four dimensions to assume there is competition and we see in the jeopardy a referred to which show that you need overlap in time time depth space inside the fish and we have the internal agency scientists saying hey here you're applying an implicit assumption that one dimension of partition is all that's necessary to conclude there's no resource competition and they were worried that the services analysis hinged on this given that given the record the service could change the way it was looking up to adopt a model they can't change it in looking at the same do no that's not our view our view is that here the agency hasn't explained why it's changing the model to one that is less precautionary in fact the which they found a problem with resources for the sea lions even though they had found some partitioning so it seems to kind of run the content of it seems to have separate claims in our brief one is about the change in the overlap analysis one is about regardless of whether it's changed or not the service relied on science that its own scientists said couldn't be used for that purpose and that the service itself didn't didn't disagree with the service didn't say you know we can use the science for this purpose but it continued to rely on overlap and it's in its you know jeopardy conclusion  service does say that there are other factors that it relied on and it's no jeopardy conclusion but the service can't point to anywhere in the biological opinion where it says that these other factors independently can good morning i'm david country from the department justice here on behalf of the fisheries service the inventors portion of the stellar sea lion as a species is not declining has virtually no extinction risk in the next hundred years so what we're really interested in in this case is the services analysis of how the fisheries might compete with this particular sub regional population in the western aleutian islands and what the service found is that the fisheries would not compete with that population sufficiently to cause jeopardy to the survival recovery of the western d p s as a whole in reviewing that decision the united states is asking the court only to apply the same rules that apply in reviewing the twenty ten biological thing and in the last if you will change all in twenty thirty mm and that is to uphold the services ability to review and make decisions based on the the agency has to consult obviously you have internal scientist she's suggesting that the regulations require that the agency address probably specifically what internal scientist that is it's a little bit like saying that if you have the executive or into a law firm and a bunch of people talk about things you've got to include anything that said you would know it may just be a consideration what's your view of the law do does the agency have to consider and comment on what its own internal experts say the agency has disclosed responsible opposing scientific viewpoints but those can be put into the record plaintiffs when they're commenting on the past as a whole and as you pointed out earlier in lance council the court on banks said that the agency said that scientific questions like this are complicated scientists disagree it would be too burdensome to require the agency to put all of its deliberative process that it goes through in reaching these decisions into the record itself so i want to be sure you get your answer so you're saying that you do consider the internal scientific comment we have to consider them to the extent that we are required to take a hard look at all of the relevant issues as they are not been vetted they have to be documented in the report to the public that's what i was going to get to next that does not mean that all of the internal disagreement that may occur with an agency has to be put in the final environmental impact statement itself now council cited western watersheds and that's an extreme case in which not only internal disagreement but also comments from other federal and state agencies what the court described as a deluge of negative comments just unanswered by the agency this is a different case in which a few commenters on the draft buy off in things like memos that admitted they hadn't read the entire draft biopic in things like comment bubbles in a word document were sharing their views with each other and i think the record reflects that in the final buyout the agency took account of those concerns and made sure that the final buyout didn't go too far in terms of how much weight to give to the site as a as a legal question in part is whether responsible opposing views in the context of that regulation refers to internal agency people as well as members of the public or other regions as i think it outside comments i think if the court looks at well mostly is kind of a fun show because i mean they either do or don't have to discuss and appropriate points in the final statement responsible opposing views they either have to do it or they don't recent opinion in which there was actual new work product by a workgroup of scientists within the agency that this court held the agency was required to disclose and respond to and that's sort of similar to the western watersheds situation in which you have lots of comments by external agencies can turn on new work product but here there's no question of any new work product that the service failed to take into account it's conceded that we use the best available scientific information in that oceana doesn't cite a single study or anything like that that reaches a contrary viewpoint that we fail to take into account i think if you look at the biopsy it is exhaustive in reviewing the scientific information before coming to a conclusion and the only disagreement within the agency was how much weight should we give to particular studies how definitive should we consider their conclusions to be and in the final buyout the agency said it's true that there are significant gaps in this data that we can't infer that there are no sea lions just because some of the sampling data we have doesn't indicate fourteen will require that all four tests be met before they would be considered a problem i think that's that's just not an accurate characterization of how service changed in alice's in both of the biological opinions the service was looking at overlap and partitioning and in both of the biological opinions it went on then to consider the response of the species population dynamic to that amount of overlap but neither one of them mechanistically apply any particular number of dimensions of overlap to find jeopardy or no jeopardy instead they went on to look at what the species response is i think that what what counsel is really concerned about is this benefit of the the fisheries could have an effect on the species then we were wired to assume that they do have an effect on the species for example if we find one dimension of overlap we're required to find the fisheries what effect this can i ask you this council of i don't mean to put words  the mouth of your opponent but it seems to me they're suggesting in effect that the burden of proof shifts here that the agency if there's any difference between the two thousand and ten by up in the two thousand and fourteen by u p agency has the burden of proof to show why in each instance it changed its analysis of some of it the same data as opposed to in effect in our principle o deference to the agency of scientific determinations per lands council what's your take on that i think that is their fury and i think it's central to their theory they can't win without it and so let me explain why it's wrong with respect to the law and then with respect to the record here this court's case law makes clear that the e s a accepts decision making in the face of uncertainty the agency does not have to resolve all uncertainty before it can reach a jeopardy decision and that is the law in arizona and even and greenpeace action the one thousand nine hundred two case that considered competition between fisheries and stellar sea lions so the benefit of the doubt principle does exist it's sort of bird shifting in that the agency has to make an affirmative finding before it can allow an action to go forward the agency can't simply say we don't know enough and so we're going to allow the action to go forward but that's different from this situation in which the agency can make a finding and there's just some dispute over whether that finding is correct or not in that is an excellent example of an instance in which the experts of the agency have a better ability than generalist lawyers or generous judges to decide what the science says the agency has to make the best assessment it can it has to acknowledge areas of uncertainty dissenting views and th has to draw a conclusion that the science rationally supports so this is not a case where the evidence pointed to harm and the service is saying well that evidence is uncertain and so we will ignore it this is a case where the evidence generally points in favor of no je others which is you've got scientific evidence your opponents are very intelligent capable people in there are a dedicated they look at scientific information the agencies have similar people they look at it there's a disagreement on how to interpret that lance council says of among other things we defer to the agency unless it has failed to consider a significant scientific controversy it does not address that or does something that congress says you can't do  that allowed the agency to reach a different conclusion in twenty fourteen than it has reached in two thousand and ten and explain why that's not just a product of failing to give the species the benefit of the doubt for one thing there was a different action under review the fisheries measures that bring that were reviewed in the twenty ten by it were not the same as the ones that were reviewed in the twenty fourteen by up the service also had more information about what the fishers were likely to do where they would spend their efforts so to speak in terms of the seeking fishing  new scientific information was available especially in the form of new sea lion survey data and new telemetry information which were relevant to this overlap and partitioning analysis and most importantly i want to say most importantly that very important in the services analysis where these criticism by outside experts bernard and bowen of the twenty times biological opinion which said that by positing this nutritional stress hypothesis and then concluding that it that it met jeopardy without any success without any established scientific connection the service had made conclusions based on speculation not on the effects of the evidence demonstrates bernard said that whatever may have happened prior to twenty years ago in the last ten to twenty years one hundred percent of tests resulted in outcomes consistent with the ground fish fisheries having no effect on sea lion numbers in the last ten to twenty years and the service didn't just take that for granted in the study by conn and colleagues at the alaska science fisheries alaska fisheries science center which is a component of noah they went and looked at those conclusions that the outside experts had had written about and examined whether they could actually determine the effect of different variables on sea lion population dynamics and they found that one of the key things that the agency had relied on  and ten mentality rates was a very poor predictor of sea lion population dynamics and ten the service was asking could nutritional stress have been causing the decline in the species and in twenty fourteen it would for specific evidence that nutritional stress was causing a decline in the species and found none the new evidence it said did not support the conclusion that fisheries are likely to question pretty that doesn't mean that there's no uncertainty the biological opinion acknowledges that nutritional stress may still be occurring future evidence may establish it there is a real initiation trigger in the biological opinion that says that if new evidence comes to light that the service is not previously considered but that would affect its analysis here the service will do this analysis again and decide whether the new evidence leads it to change its conclusion but acknowledging that uncertainty in the record doesn't show that the agency has failed to uphold its e s a allegations it shows that the agency is taking the process seriously but what the e s a doesn't require is to make the agency prove a negative to demonstrate that conclusively fisheries will have no effect on the species as a whole change was not droom by a difference in policy or personnel this was the district court ordering us in twenty ten to do any i a s which we had not done for the interim final rule ordering us to go back and look at all of the science again we did that we went back looked at it all again and explained exhaustively why we made the decision that we made it was purely a response to changing science and our changing interpretation of that science that's exactly the kind of decision making that the e s a and meet are intended to promote and the district court was right to find that it c locations where they can fish excuse me ninety percent of critical habitat remains closed to fishing this is only eight percent more open area than was true under the tw to the existing no troll zones of one hundred thousand square kilometers created by the aleutian islands habitat conservation area the main change in the two thousand and fourteen biopic in the western aleutians time to continue where they have historically fish in an area that is one hundred twenty four thousand square miles this change was made as a result of new toiletry data which was much more robust than what the agency females for the population that the agency has identified as being of most concern were foraging inside critical habitat not outside critical habitat eighty percent of the time in winter ninety percent of the time in contention that the overlap analysis was the keil in japan of this decision nim's also had new studies and information about it for medical distribution and movement the effectiveness of a troll exclusion zones and in fact in the one area where they found that trial exclusion zones were not being effective they made a bigger one the historical they also had information about the historical and spatial distribution of fishing effort in time and space which allowed them to take a much finer look at what they could and couldn't allow this information it was more than adequate i would say painfully explained in the us and in the biopsy and turning to politics i think the key thing about pawlik is that it actually proves that the overlap analysis did it what plaintiffs claimed it didn't do it actually found the potential for a localised depletion as a result of the pollock fishery but for many reasons which i would get to the agency decided that it could allow the fishing to continue anyway it is true that commercial fishing for pollock in the aleutians was closed in one thousand nine hundred nine but in two thousand and five and was unable to find commercially viable amounts of polic the two thousand and fourteen rule opens thirty five percent of critical habitat to pollok fishing but it reopened fishery is subject to many many reasonably based on the amount of data before it and for the first time data did an analysis of the deps at which the fishery operates that stellar sea lions are looking for fish in shallower depths and the fishermen are fishing localized depletion did occur it would be very fleeting no more than a week and it would not be likely to have population level effects this was a reasonable just decision and it was explained finally i just like to note that i've been involved in stellar sea lion litigation since the late one nine hundred ninety s and i remember that about the second or third time that we were in front of judge silly in the western district of washington he stated i don't want to be a fishery manager and i'm not going remaining i'd like to start by addressing counsel's argument that the biological opinion that in twenty fourteen the service became less certain about the link between sea lion decline and and the fish es about the idea that nutritional stress was even happening based on the critiques of the peer reviewers that doesn't match what the biological opinion says the biological opinion concludes tha important data gaps hinder our ability to rule out fishing is contributing to the continued decline and lack of recovery of sea lions and it three are three eighty five to three eighty seven the service goes in depth addressing the p reviewers concerns about nutritional stress and that and the supporting record for that and it is essentially says we've done a lot of science but we actually haven't put together the right variables that would even show us that there is nutritional stress linked to the fisheries and we haven't done the right we don't put these things together in the right way to even know that was happening if it is happening and so that's why the service concludes a lack of sadistical significance and previous studies cannot necessarily be useful as credible scientific scientific evidence against the privilege of ale ability hypothesis that's at three our three eighty seven so the service actually it doesn't roll back protections based on the fact that it's less certain about this nutritional and in many cases they they found that they disagreed with the peer reviewers and that's where i point you to three three eighty five to three eighty seven they go in depth into why that criticism about the link between nutritional stress and cline decline is is doesn't work here and why they're continuing to assume that the fisheries will do contribute to sea lion decline it's in the next part of the analysis the overlap analysis where the service does something different than one it's what it's done before briefly on that point this is the internal expert criticism here came from the experts in stellar sea lion science the folks at the national marine mammal land laboratory are the people who've been doing the research on sea lions and they're the ones who said overlap analysis is different and you're no jeopardy conclusion hinges on this overlap analysis we also have that critique from the stellar sea lion coordinator the person who's tasked with naming stellar sea lion science among the agencies and it's significant it's significant criticism from the experts finally i'd like to just touch briefly on the services duty to protect sea lions chances of recovery the service had an affirmative duty to protect ceilings the chances of recovery recovery is built into the definition of jeopardize but logically if they found there was no jeopardy and i have nothing to defer to well there's nothing to recover from in for snow depletion just logically they don't fit together if if if there is some finding and i know you disagree with it context you have to seems to me to be right about something else in order for that to you from coming to play the service hasn't made a finding that the species is just fine stellar sea lions in a western aleutian islands are declining at seven percent per year and this court has held that even before a species becomes extinguished before a population becomes extinguish it might reach the point at which it's no longer recoverable year the service needed to know whether  lions in the western aleutian islands were getting close to that tipping point from which the population can recover so that it can manage appropriately if the lines are getting close to that tipping point it's going to have to act in a more precautionary manner and if that tipping point is still a