speak for twelve minutes in the opening to relieve three minutes from his novel and in the opening and reserve five minutes for a bottle for myself i'm eager to address any questions from the court i know this there are a lot of issues presented in this case but i'm hoping to touch on two major issues  first the services findings that units two and three contain features essential to the conservation of the polar bear and second services consultation with the state of alaska through this action or process but before getting into the details i think it's helpful to clarify the limited challenges that are really presented here and look at the overall decision here the service designated the critical habitat for the polar bear which is a species that is specifically threatened by its loss and destruction of the habitat and in doing so the service had to make a number of judgment calls based on limited data this is an incredibly harsh and unforgiving environment it's constantly shifting very few humans live near this habitat and the polar bears have adapted to this incredibly dynamic environment with huge movements huge ranges dispersal and the occupation of huge areas so that's part of what the background to this the primary issue on appeal is whether based on the best available science the service reasonably identified units two and three specific areas containing features essential to the conservation of the polar bear such counsel my understanding of the district court issue with the designation was that it was not specific enough what's your response to that i think the answer to that is that it was a specific as it could be based on the available science at the time which harmonizes the various requirements of the endangered species act specific also requires that it be clear to the public the regulated community  has interpreted that to require to develop specific and clear maps here it is a specific as it can be based on the science for your understanding of the district court's criticism of the designation thinking from what the what could have been done by the agency that wasn't done to make it more specific well i think there were two problems as we understood it with the district court's order one is that he's seem to desire it kind of very specific documentation of exactly each and every area that's going to be used by the bear and that's scientifically impossible but there has incredibly variable movements it wanders over these areas so that's that's one problem is going to be used or that that is is used by the bear so it's almost like a swiss cheese which isn't really habitat habitat is is the environment in which the bear lives the other problem i think the district court had is he thought there was evidence of some of the elements in the p z ease and there i think he was just he overlooked evidence in the record and partially this is the district court went on the theory that wasn't really presented clearly or wasn't really the theory we understood the pla be resenting so he thought there was no evidence of two of the elements of p c two we thought there was no evidence of access from the shores to the den which no one had really claimed any thought there was no evidence of non disturbance by humans which no one really had claimed and i think as our brief makes very clear there's ample evidence in the record that both of those elements are are in p unit two and are widespread throughout unit to now where are we to just talk about unit two maryland which is danny done there which shows that unit two has the elements necessary for successful banning but then you also have multiple radio telemetry studies that show the bears moving through unit two and going from the shore to the dens and then you also have the den site studies which analyzed aerial maps and tried to identify where potential downsides are and one thing those studies show is that first they're spread widely throughout the area and the vast majority of unit too although most of it isn't itself a potential then site is close enough to a potential dense site that human disturbance could if the unmanaged cause problems so and then the next is the extent there is human activity in this area at dead horse or at the native villages there's lots of evidence that the bears disturbed it's not disturbed in this so i think this is this is the one element that i think is a little confusing but i think is can be discerned from the record the service said not disturbance is really important for the bear and important for its conservation but it didn't mean to say and it didn't say that this court has recognized that the fact that something is important doesn't mean that it's the only thing that's important the only element that an area needs so the vast majority of unit one and unit two is undisturbed and provides that undisturbed location for the bear but to the limited extent there are areas near human development the level of disturbance isn't sufficient that that would the mentors renders it useless to the  may be someone in a dead horse first of all it's very unclear term it's an area in north alaska it's not used all the time it's not you systematically all the time and in particular the parts that are designated aren't used all the time so for example they  invoke the dead horse airport but that's south of the designation that's not in the designation so the areas that were included are not used systematically into the extent there are we get multiple reports that bears do move through this area and if we had to exclude areas because they were imperfect for critical habitat that's not what the statute says it doesn't say it has to be ideal habitat or perfect habitat it's also the area where the polar bear is most were management is most important for the conservation of the that's exactly where we manage people and ensure that they take steps to ensure they don't harm that there and that the bar doesn't come to the human nuisance so it would be very strange to say we're going to exclude the very places where conservation measures are most important i don't think is it the kind of decision that is within the reasonable range supported by the data looking at it as a whole and here you had a variety of scientists sit down and look at the various dens and they found two very distinct groups right east of the cavite river it came in about twenty miles west of the catholic river it came in about five miles and so they they chose five miles as an increment now that's partially to build in a buffer zone right there they say well it's only two point eight miles that study which are only dens identified through radio telemetry and the reason we did that is because radio tell them a tree is less likely to be biased and we're pretty clear that there are other dams there definitely other dense i mean dense have been as much as fifty miles inland extra two miles well so first there's the there's a mile for the buffer and lots of people agree that a mile long buffer around ends is important to preserve that there and we have the the snowmobile reaction studies which aren't perfect because it's not about bending there's which show the bears reacting on average at about a mile but some bears react as much as five miles or five kilometers away so we know that some areas needed for non disturbance and then the other thing is you want to build in a little bit extra because we have such a small data set to work with we know that we only are tagging or are getting data a maybe twenty to forty bears a year and there's two hundred  forty there's as to mated that den in this area and they do move inland so this is within the data justified range was the best we could do with the data available and i think this is this is a classic example of the best available science question is there a better methodology is there a better approach and what the plaintiffs have studiously refused to do in this case is identify a better approach or a better way of doing this that would have allowed us to do a better job and we have to designate critical habitat we have to act on what data is available at the time even if it's not as perfect as we would like it to be this is a little confusing one side of the river there  because they weren't telemetry dens on the on the on the west side as well and their dens that have gone been further inland with respect to barrow and for that matter there is dens west of vero that were excluded because on balance we don't think there's it's critical habitat we don't think that the denning on the west of barrow is essential to the conservation of the bear in light of all the evidence before the agency i also think it's important to remember that the ultimate question is unit two reasonable and the agency used its methodology to map it but it's all to make conclusion was unit two contains all the elements necessary for the venting habitat and that was reasonable it was built on all the various lines of data that the of access from the coast to the downs and that's just incorrect because the radio time a tree data shows the there's move throughout that whole area and then the other thing the district court said is there's no evidence of non human disturbance but that's also good morning please the court i'm rebecca novel and i represent the environmental group interveners like to make just two quick points one about institutionalized caution and the endangered species act and what about the importance of critical habitat polar bears are going to go extinct if we don't do something federal scientists tell us that two thirds of the world's polar bears are going to be gone by twenty fifty and that includes nearly all of the polar bears here in alaska in the context of this dire situation in the service designated essential polar bear habitat that complies with the letter and the spirit of the endangered species act which sets a policy of institutionalized caution and passing me at congress established the federal agencies have a duty to give the benefit of the doubt according to the supreme court all federal agencies must afford first priority to the declared national policy of saving an endangered species when science is uncertain the law requires federal agencies to cut in favor of listed species here's some of the world's best polar bear scientists looked at the available data and determine that this habitat is essential to protect polar bears although the scientists couldn't determine the exact path as polar bears might take across their vast ranges are the exact places they might hunterdon in any given year the scientist rationally designated those areas most likely to provide those services over the course of a polar bears lifetime polar bear biology doesn't allow for more specificity in the endangered species that doesn't allow us to demand it my second point is that critical habitat provides real benefits to polar bears congress was right when it found that the most important factor in ensuring a species survival and recovery is the protection of its habitat studies have shown that species with designated critical habitat are more than twice as likely to be recovering as species without in critical habitat not only provides for section seven consultation it also gives the service the opportunity to holistically determine which areas are essential and that's the public and land managers i notice that this habitat is important needs to be treated with care the goal here is there seems to be a little bit of tension here between what you were arguing to be the goal and what the district court saw as the goal the goal i take it is is is to conserve the species and to protected and to let it  expand is that rather than just making sure that the existing polar bears continue to exist he says the goal of critical habitat is is to ensure the conservation the only way to save polar bears is to reduce our greenhouse gas emissions but if we want them to survive long enough for that to happen we're going to have to throw everything we've got at protecting them from other threats and this legally sound well reasoned critical habitat designation is an essential well your honor i was not planning on addressing it other than through your questions or not reserving time for cross rebuttal but if if your honour's have questions i'm prepared to take them of course good morning your honour's my name is jeff lepto i will be presenting the principal arguments today on behalf of the broad coalition native alaskan native organizations the north slope borough the state of alaska the alaska oil and gas association and the american petroleum institute that are the plaintiffs appellants in this case we've allocated our twenty minutes so that i have seventeen minutes and then mr love who will follow will have three minutes to speak specifically to unit three issues as they concern the individuals who live in gov on the north slope within critical habitat areas to economize our time the state of alaska is planning to rely on my arguments on the arguments of mr love in t briefs if you have questions i'm here to answer them subject to the court's questions my intention this morning is to address three subjects first to very briefly speak through the federal defendant's reliance on the wrong legal standard second to address why the service is preordained decision to designate unit two and minimum five mile swath was is the district court held arbitrary and third time permits to quickly address why the services designation of unit three as the district court determined was also arbitrary and before i even dive into the legal standard i'd like to answer a question that you just asked schroeder and it relates to the purpose of critical habitat and how it concerns the polar bear here and this case is unique in the sense that the purpose of the endangered species act is to bring to conserve listed species and so it is to bring them to the state of recovery what's unique about polar bears is that the threat that they face is in the future not in the present and so polar bears as the record clearly establishes exist throughout their historical range and at the same numbers the largest numbers they've ever existed at today and nobody's anti nobody is anti polar bear my clients in particular defended the listing of the polar bear so that no one is here for that purpose all these parties have coexisted with polar bears particularly of course the native communities for centuries and so they're not the threat here but your point about the fact that any threat is in the future what is your point in making that statement i just wanted to be clear that  habitat isn't about bringing them back to a state of recovery uniquely in this situation they're in a state of recovery that i'm simply trying to draw that distinction speaking to the legal standard interest is an operating within polar bear habitat in a way that safe for humans and that allows for resource responsible resources on my my first point is the legal standard is the federal agencies are required by the a p a to engage and reasoned decision making to explain cogently the basis for their decision the plaintiffs contended and prevail below and we're arguing here that the services designation of polar  critical habitat is arbitrary and unsupported by a rational explanation in violation of the a p a and moreover that there are many explanations including the explanations that mr stockman just provided are all post rationalizations that can't fill the gaps that exist in the record therefore the claims as the district court held are in violation of the a p a is arbitrary and capricious standard there's an independent obligation and inde of the a p a e s a section four b to expressly requires the use of the best available evidence the failure to use the best available science is a violation of the endangered species act however the what we're not challenging those studies are our point and your honor brought up the issue of the five mile the minimum five mile swath requirement so that's a good example of the situation that the service directed us g s the us geological survey to identify in minimum five mile increment where ninety five percent of the known or suspected denning had occurred on the north slope to designate unit to there's nothing in the record there's no science there are no scientific reports there's no explanation for where that five miles came from nine so the u s g s and that those five miles came before they knew where the ninety five percent ending was it was an instruction so u s g s and there's a report in the record which i strongly encourage you all to well let me ask you do you challenge the two point eight finding of percent were within two point eight miles of the coast in the band between and that seems like a compelling number within two point well it would be if you could demonstrate here's the other problems with it right they they zero two point two percent zero point two percent of that area is actually where polar bears down and that's the habitat not not because it's a huge area and there are only  record how they concluded that the other ninety nine point eight percent provides those things and there's no explanation in the record for that there's no explanation in the record for how the other ninety nine point eight percent of unit two provide unobstructed access between dens in the coast or how it provide how it provides areas that are free from human disturbance and in fact we can talk about that five mile area if you're looking for access between dens in the coast and you've identified that the dens are two point eight miles inland and you designate in an area that's forty four percent further inland well that that forty four percent area is in studies i mean they're all over that area and so i'm trying to figure out would you have this not look at that we're not have them not us not have them like that but it seems like those studies which is the there's no determination in the record that they wonder throughout all this area and that in fact the p c e your honor is unobstructed undisturbed access between dense sites on the coast that is a very different thing than saying that they move through the area polar bears not denning polar bears but polar bears move through the area that's not the p c e for unit to unit to is access from which is zero point two percent of the syria to the coast that's how they defined it and they have redefined in their briefs the notion that there's lots of evidence that polar bears move all over the place where there there is you're measuring dense sites yes and again the the evidence is your honor that all of the denning habitat all of the denning happened not just where there are dense but all of the denning habitat is zero point two percent of unit t it's not not selecting only the places they've ever been taking all the places that ever could be dense is zero point two percent magically the problem i'm having with your argument if they don't magically  on which are found the p c isso they don't find the p c s and it's their obligation to explain in the record this is basic a p a requirement how they concluded things when they designated unit to what they said is ninety five percent of the dens occur in this area and we're picking it in five mile bands that's it that's all they did they didn't there's no explanation the record sure there is i think seems like there is there's there needs to be based on the stud a buffer or that it was selected to provide access this is a post hoc rationalization it appears in their briefs it sounds great it isn't the determination that the service made it doesn't appear in their rule should have done here instead of the five k again it's their obligation to find the specific areas where these occur and not well it just doesn't seem arbitrary and capricious if the bar looked where the denning habitat is as opposed to where the dens are right and what they found is that zero point two percent of the area cerner didn't look for ninety five percent of where the prior  wouldn't be making we would be making the argument that the five miles is arbitrary absolutely you wouldn't be making the argument that two point eight is art not the two point eight but you have to look at the interstitials right ok so they come out to two point eight then the question is what about these areas in between the dens and there is a lot of human involvement in those areas so the other piece of this your honor is it's not that there aren't areas where they go or that there aren't areas that are free from involvement but on the north slope there's a large industrial complex up there and there are villages the people live in and there is a federal program your honor that specifically exists to look for polar bears because they are the apex predator of the arctic maybe they eat people if they're allowed to and they look for them and when they see them come in the area they monitor them and if they don't move out of the area they engage in an increasing set of protocols in order to harass them away so they don't then in those areas and so they don't go and say areas and so you can't those areas and no that's not right your honor they excluded buildings and they excluded the villages themselves but in the they are hazed away from areas approaching those areas because of course children play and people move outside the absolute boundaries of the villages and right we can't a lot of litigation with polar bear point is that these bears are hayes away from these areas he can't be both critical habitat and areas where if a polar bear moves into that area they are hazed away so that they don't dan and so that they don't travel through that area and there are large areas of this ok there are large areas where that's not true but the fish and wildlife service has the capacity has the information to know where these areas are because there's a federal program that's existed for decades in which they know exactly where people hayes where they operate and where they haze polar bears away and it is beyond the limits of these villages and it is beyond the the edge of every building and it can't it's the height of arbitrariness to designate an area where you hayes bears away as critical habitat and that's what they've done miles of alaska native villages is are better precious and lacks a rational basis the north slope borough is a area wide local government akin to a county in the lower forty eight with  jurisdiction over proximately eighty nine thousand square miles of arctic air dorie the the majority of the north slope borough residents are lask natives alaska natives and their ancestors have been the arctic's primary conservation stewarts for thousands of years carefully balancing subsistence needs and cultural traditions with profound respect for the polar bear there's nobody in this case that is invested more in the conservation of the species or it's more interaction with polar bear than on classic a native the north slope girl strongly committed is strongly committed to measures that conserve polar bears however this flawed designation will harm alaska natives and norse old girl residents the very people whose livelihoods depend upon the designation designated lands as a district court stated the designation went too far and was too extensive the prime example of this is the designation of areas within one mile of alaska native villages as unit three non students own critical habitat in these areas for human safety and bears safety  polar bears in these areas if a bear stays too long it can be killed for public safety concerns unit three in the non disturbance zone were predicated upon being free  around alaskan native villages because the record demonstrates that these areas are disturbed the services concluded in the final rule for that the functional usefulness of the habitat requires an area be free from human disturbance yet they designated areas that are not free from human to sturgis that these areas lack the biological physical features necessary for the conservation of the species and these areas do not fit within the designate the did you need to in unit two there are villages and then there's a dead horse there is dead there are dead and there is human development in unit two my focus right now is on unit three in the villages that are located within the barrier thank you your honors it response i'd like to focus on the human disturbance issue it is the vast majority of both units two and units three is not disturbed by human activities the vast majority of the time i think that's everyone agrees about that the question is should the service have then not designated the places closest to the native villages and i think some of the oil companies would have liked exclusion for certain projects and the service wrestled with this exact question and  concluded and i mean i think this is in the excerpts of record in the final decision document at places like eighty four through eighty nine they talk a lot about these issues among others they concluded that they were going to keep them and part of that is this is exactly where conservation measures are in place and were conservation measures are most important there's ample evidence that polar bears do in fact use these areas and if not managed would use the more i mean i think we're all in agreement about that and then there's a role here for conservation for hazing the bear away so that doesn't get used to human interaction too much but the record is filled with examples of bears coming to these native villages to air force bases in this area to various places i would i think excerpts of record one eighty nine through two zero five has some very interesting stuff on this excerpt excerpts of record three zero nine three seventy seven so there are huge aggregations in fact in some ways native villages can become a drawl for bears so the quote because they leave leave  s and then the bears feed on the whales so the question was do you exclude it because it's imperfect because we're you know we don't want them living there or do you keep it because they do want to be there and we have to engage in active management to haze them away and it seemed very it would have seemed strange indeed to exclude areas from critical habitat on the basis that you engage in active management to conserve the bear there there's nothing in the critical habitat definition that requires you to exclude places like that so i think that the service had a difficult decision to make but it made a reasonable one and it is it and i think the rules also one hundred percent clear that the service intends for those very activities to continue those management activities will continue we don't think the critical habitat as a nation in any way interferes with it and in fact the service talked about how it wanted to expand its activities around native villages to ensure that there doesn't come into the village as little bit of a mistake about the nature of the report it was developed by u s g s but the report itself is clear that it was in consultation with us fs that they were going back and forth and has polar bear scientists as the authors so the second part is the record itself  excerpts of record eighty seven and eighty three ninety four talk a little bit about why they chose this methodology and in particular i would i would point you to excerpts of record eighty seven where they say we did this because well in eighty four they say this accurately captures the major areas and therefore the features essential and in eighty seven they say we have a limited number of radio collared female polar bears in any given year approximately twenty to forty dens are located but that is a small subset of the total number and so there they were saying we have very limited data so we're going to choose a conservative estimate to address that limited data and that is exactly the kind of thing this court upheld in the two delta smelt cases i also think that they talked about at eighty seven as well how these areas are crucial because it's not just denning and it's not just access those both those things are crucial but it's also a lack of disturbance and areas quote areas to acclimate the cubs after den emergence and quote that's an excerpt of record eighty seven so they could just choose at the very absolute stop of the den and this is soon as that bears kind of will come straight from the shore immediately to the den settle down somehow be impervious to destruction and then go right back out to the ice but that's just not true  days around the dens acclimating the pup the cubs and moving them around so they had to build in space for that and i guess the mother bear has to eat something and i don't know how much she gets to eat of hers she relies a lot on that study study different things a lot of it is movement and it establishes that they move throughout this area and actually much further inland but then we can also identify when they've done in the way you identify that is they stop and they stay very still for a long period of time and you can establish their denning i mean the polar bear doesn't generally hibernate it only dens when it's giving birth so that's how we know that it helps us track down not just their long movements which are not perfect straight lines but also they stop they stay there and then usually we send someone out to see if we can establish whether they successfully had cubs or not ok when you said that the radio tell them that trick studies that when you refer to those you were talking about the bears that have the collar on them so that you can follow them yes we can put collars around adult female bearers and then follow them as they go through their course and then when they stop you can assess that they have stopped to devon and we then go out and confirm that there was a den there later so that's how the radio time actually both tells us where they move and lets us infer when they don't and they don't hibernate they just give they get they give birth i mean they kind of i mean then they say still but the true north normal people are sorry adult male bears for example don't hibernate annually and adult females that didn't gain enough weight or didn't mate don't hibernate annually as a general matter so if they stay still you can be pretty confident that they are giving birth and raising cubs so i see my time is up i would like to just quickly sum up the polar bears a threatened species facing destruction of its habitat substantial evidence in the record establishes that the designated habitat is occupied by the bear that it contains features essential to the conservation of the bear and that those features may require special management the court should uphold the critical habitat designation so the government can start relying on it during