natural gas pipelines and that both projects have the same types of affects and so we're going to hear argument from mit's ansell is that's correct and we'll hear briefly from mr ma what more will of mr snyder but only as to things that they have that are different for their clients it is well does that does everyone understand that it because we don't need to have the same argument weiss in a row and but but we do want every party to have its opportunity to to educate us about your case and make  one i throw something out and then you all can tell me that i'm crazy that would make you feel better the government takes a position recently in the last argument that we're probably this thing isn't really going to jack off until maybe december the next the latest so could be the out on before they finally get their end of it wrapped up so i guess the question is what are your comments also with respect to timing because i think that's a fair question certainly so please do address a judge king's excellent question about timing when you when you talk about your party's position on the situation ok so let's begin with mist and some thank you your honors may please the court my name is devor ansell on behalf of petitioner sierra club and defenders of wildlife i would like to reserve four minutes of my time for rebuttal and are less than sixty endangered ocelot remaining in the united states fifty three of them in southern texas approximately fourteen live within the wildlife refuge directly adjacent to the rio grande project site the fish and wildlife service concludes that loss of habitat unique to this region is the leading factor threatening extinction of the us population in the service has declared that creation of the contiguous corridor to link the remaining texas ocelots is necessary for survival and recovery in the rio grande project site and nearby wildlife refuges are in compassed within those co lands the service with the principle duty of protecting species from jeopardy innings in extinction has already approved more than ten projects in the area which together have authorized the loss of more than twenty texas  lots in this case the service did not analyze the effects of those previously approved actions on the current state of the ocelot as as required by the endangered species act and yet the service approved the rio grande project acknowledging that it will cause additional harm to the species but it concluded that the project would not jeopardize the species without providing any explanation of how it reached that conclusion i think plan to address the following points today st the services failure to provide any justification for its no jeopardy determination and nd the incidental take statements omission of required terms and conditions that govern how the to analyze its no jeopardy determination starting with the environmental baseline it fails to analyze the more than twenty previously authorized takes for projects in the action area this violates scuse me they say in their briefs that they've authorized these takes but in fact at the moment as things now stand these tapes have not occurred the fact that they've been authorized doesn't mean you may be authorized to kill twenty as last but none of  excuse them from their duty under the plain language of the regulation that states they are required to analyze the past present and to support it effects of those actions the consultation handbook also requires that they consider the  and analyze the ongoing affects of those actions while i question if and when this when the service and air and the other governmental agencies involved here authorized to take is there a continuing abnegation the part of the potential taker that they have to notify you when that's been done so as the court s the issue certainly that is the case but here they've also the services also found that ticket is any such take is likely to go undetected because of the species not turn all elusive in wide ranging nature and so that's why i say it doesn't excuse them from their pla duty to to do that and it and i would actually like to turn the court to the d c circuit opinion in two thousand and eighteen of merican rivers versus fur that invalidated a biological opinion for failing to analyze impacts of authorized take that hadn't yet occurred that amounted to a different significant proportion of the species in a certain section of its existence so there it didn't it hadn't yet occurred but they're required to analyze that as to the ongoing effect in terms of how that will contribute to the degraded conditions into the existing preparing a state of the species and also as this includes the analysis of future takes that the service is deemed reasonably certain to occur that's their determination it when they authorize take in the federal red just are promulgating the regulations defining environmental baseline  effects of the neck of the action require them to analyze the present environment in which the species exists as well as the environment that will exist when the action is completed so for this analysis that means they need to consider the  they seem to reasonably certain to occur during a thirty year life of this project and with regards to the more than twenty previously authorized takes they did they didn't analyze those they simply stated that  all those takes were to occur the refuge population would be extirpated but they did no one now list this of the implications of that loss on the small and extremely isolated texas population or on the species as a i just disappearing i take it that there is decided or you need to tell me is that decided only with respect to the lots that occur in the united states because as i understand it there's a lot of us a lot south of the united states all the way to point to cyrus so as is the only area that the statute is concerned with is what dies here in this country your honor the service manages the texas population as a significant recovery unit they've found that there is that reconnection with the larger species most closely south of the border in mexico is significant to the future evolution of the genetic evolution of the species they managed to reconnect it because of the importance they have found of of the genetic connection and in particular for wide ranging and fragmented species like these they must do a good shepherd the analysis on this texas population that is the focus of their management as well as well as determine what that jeopardy or diminished capacity as from this project would be how that affects the long term rent and reap recovery and survival of the species as a whole no such an analysis was done here either based either that at the environmental baseline stage aggregating those previous effects upon which the effects of this action must be added to analyze jeopardy that jeopardy analysis isn't done or explained they simply leap to a conclusion  that that no such no jeopardy no jeopardy exists they don't apply their own expertise and analyze that is simply unexplained and this is the type of situation that the services of no no deference on that because it's unexplained and frankly runs contrary to substantial evidence in the record regarding the pretty precarious state of the species including that population connectivity and  genetic variability must be achieved for the recovery and survival of the species in that the texas population faces an extremely high risk of extinction within forty to fifty years if conditions for the that will be further impaired by this project do not significantly change your honour's if you do address judge king's preliminary question regarding rightness and changes that are taking place in does that affect this this these two lawsuits your honor it this is this that does dot affect this lawsuit this is a to separate agency action separate legal questions entirely and with regards to mr jaffe's statement about investment decisions at the end of december of this year that that shows that they cater would be a problem a proper remedy here it would supply ample enough time for the service to do the proper analysis here if that is in question at all though vacationer is the standard remedy under the a p a regardless i'm your honour's if this is also about the biological several membership declarations for both org and organizations establishing recreational scientific and educational interests in protecting the ocelot showing that they visit the refugee populations they go there to look for ocelots and study ocelots and return exactly they do and that that is both engine chapman's declaration as well as sherry wilcox's action each organization or is it only for one of the organizations for both your honored cherie wilcox's defenders of wildlife engine chapman a sierra club and there are a few others in there from both organizations and we do establish causation in the service as violations of the endangered species act are leading to jeopardy and that would cause further harm to the ocelot and with regards to redress ability requiring that the service conduct the proper jeopardy and al assess and that that we could potentially turn to a different outcome such as more conservation measures greater conservation measures would certainly diminish the harms to the ocelot and thereby our members in with regards to the jeopardy and alice is this is also not just about the environmental baseline this is also about the biological opinions failure to analyze the loss of the additional ocelot from this project that was not analyzed here and should be with respect to the significance of the pension loss of a breeding hatch on top of the previously on the rise lost in having a potential domino effect on this extremely small and isolated texas population and on the species as a whole there are also a litany of direct and indirect non lethal effects that were unexplained in the no jeopardy determination is is not explained in light of those that the service acknowledges would decrease dispersal and reduce overall genetic by ability and reduce fitness for the species so with a lack of a lack of explanation or justification of their no jeopardy determination the service is simply no deference given the abundance of substantial evidence in the record regarding  precarious state of the species with the few minutes i have left they would like to terms of the terms and conditions less your honour's have other questions about jeopardy ok the incidental take statement fails to set forth the terms  conditions defining how rio grande will implement its reasonable and prudent measures that violates the statutes the plain requirement that this that the service shop shall set forth terms and conditions with which the a abbott action agency must comply to implement the reasonable and prudent measures that the service and eyes as necessary to minimize harm from the incidental take it authorizes and interpret in that authority the services own consultation handbook requires that conservation measures that are part of the project must be implemented under the terms and conditions in the terms and conditions must provide the specific methods expressly when what and how the reasonable and prudent measures are to be achieved that did not happen here with respect to the terms and conditions implementing reasonable and prudent measure while which is comprised of the only substantive conservation measures that address direct harm to the species and habitat including lighting scheme modifications i plan realignment and less destructive drilling techniques all that exists is a general term requiring that rio grande hire a compliance manager to oversee implementation of the measures that allows the service only to enforce whether or not rio grande hired the proper personality there's simply no details or benchmarks for enforcement to ensure that the service can enforce the substantive requirements of those measures and it matters that the terms and conditions are any incidental take statement and not simply in st project authorization that is because there is no assurance that the substantive provisions of the endangered species act will be satisfied if there are not any incidental take statement this is the contract if you will between the the service when it authorizes t dollars it only allows tape to proceed when the service authorizes it incidental to a project provided that it complies with the terms and conditions of the incidental takes they've met so absent those terms and conditions there is no assurance of assurance that the substantive requirements of the endangered species act will be satisfied and it's notable here that irks of there is a show and provides no details on the implementation of those measures just like my final minute i wanted to just touch on two last issues then the consultation re initiation notice violates the statutes requirement to immediately halt activities causing tape limit exceeding says in reinitiate consultation that the notice language provides that for clearing and maintenance activities they should immediately stop pending reinitiated consultation but for vehicle mortality they can simply meet with the consultation and finally your honour's it is our position that the service should have considered and noble and in the action area here in developing the reasonable and prudent measures the incidental takes of a statement at  and the recovery plan states regards to the population in texas that in absence of population expansion and linkage with mexico if faces a high risk of extinction in less than forty years the main issue i'd like to address because as the court noted there are overlapping issues in this case some of the main one i want to start with an address is leaving the rio grande project out environmental impact statement by four so issued while i service certainly knew about it and they should have considered it to comply with the solicitor's opinion that describes how the baseline should work which is the st approved case which here was rio grande three weeks earlier should be considered in the nd while logical and here to consider whether ri and they didn't consider that and the way they did that in another was to make the action area identical to the project site and that's exactly what  way first the construction noise and packs from one of this is a very large industrial facility that will involve pile driving and construction with heavy machinery going on for four years the construction impacts can be felt by wildlife in the wildlife refuge and that's in the record in the environmental impact statement  are a way refuges in they would be felt in the rio grande site and they knew this the other way the impacts extend beyond the actual area is that i know will eliminate two hundred and twelve acres of us what happened and this habitat loss impacts the utility of the entire south texas which is some the northern refuge down to the mexico border is about five months we're talking about a somewhat small area here but nevertheless taking two hundred and twelve dollars acres out will in there or similar is the environmental impact statement says decrease the effectiveness of the habitat linkage with the ocelot corner and that's the entire court running from the wildlife refuge down to mexico like taking the like taking a link out of a chain or weakening it that's what they've done here effects the whole chain the rd way and it affects  the actual area is the project effects taking project taking an ocelot in the project site for example by traffic by being run over something effects the population in the refuge and in effect population genetics and distribution of that tiny population are a few which is only thirteen or fourteen of us and this is especially true if you're dealing with a male for example of a breeding population how that would affect the entire thing to take that one out of this group of thirteen which is already genetically depressed and suffering from genetic by building problems so that effect is in the wildlife refuges well now they were aware of this detentions so they were aware and treated this like there were impacts that were greater than the immediate area and one thing that i'd like to address now is whether they should have considered the rio korea biological opinion now it shows that the rio grande biological  normal activity right nevertheless wildlife service didn't address rio grande at all it's as if it didn't exist and they didn't explain why they did  this there's no explanation no record of it and it's just scientifically ups out the rio grande biological opinion was the best scientific and commercial data available and should have been considered under section thorough analysis of the baseline based on that and based on the other projects a baseline towards their jeopardy analysis and torts their reasonable thank you do you have anything else that's unique about your client's position or something that you needed to empathize so the the thing i'd like to add at this point refuge population would be extirpated but they don't discuss how that would affect the texas population they don't discuss how that would affect recovery there's no  they just leap to well there's no effect on the species as a whole and that's not appropriate or thorough because they have to occur they have to take into account non projects they have found they're reasonably certain to occur so they have to treat them as if they have occurred and that's for a two dollars to settle really they looked at the wrong time period here they looked at the moment of the biological opinion and not the length the thirty year length of the project and all the takes that would occur in there and whether they can just add one more is their practice with rio grande and then this by fish and wildlife service biologists in south texas where the service has been working on awesome conservation for decades and it's through marshalling all of that experience but the service was able to conclude that st authorization of these  section something consultations actually work under the start sure and your comments in regulations so the bottom line here is d just that these are our standard biological opinions prepared by one of the service consistently in decades  timing and the scope of the jeopardy analysis and i would also who just touch on a couple issues the baseline for consideration of the two projects and each other's biological pinions and then the terms and conditions so st and in terms of yes i mean just ask one question the case for you the prior so to speak the government takes the position that there's to be a lot of changes and so really this thing may not gel until the end of the year december in what i'm you know so what they could basically want us is either to go into a holding mode or just to dismiss the appeal and and wait till next one comes up in europe representative of the government of what i need to know from from all of the four of you who are here how does th fact the other issues that are in front of us i mean for example does the government think that we ought to just dismiss the innova to the an over project issue as well i mean we've got a sort of recommendation of something that sounds very good to an appellate judge which is just you know scratch it and start over again in a year sounds mighty attractive but the question is there's a very broad brushed and there are much more specific issues here for example with the you know over project i don't know where we stand with all of this if if if as the government asked we just dismiss this appeal and say too bad start over when you're ready i guess maybe i should have asked this and salim but that's the question where are we what as far as the four of you are concerned where are we so my understanding is that for both projects both regret project as discussed in the previous argument  project the final investment decision is still forthcoming but we don't think that in this case that requires the court to hold the petitions in a bad score to you know refrain from deciding issue because the biological opinion is distinct agency action you know there is potential if there are developments down the line that require additional consultation that might yield something different by their action in front of the court today i think is right for adjudication going on like in the other case where they're going in revising something that they're challenging that's correct the st did ask them the fish and wildlife service earlier last year about a modification to the pipeline pipeline for the rio grande projects the service responded with a letter on the st doctor to advise him st that they don't think there's any modification required or amendments to the biological i can you answer why be in no doesn't mention the other project it seems like a really big into leave out sure so the reason that itself mr huber pointed out you know there are parts in the in parts of the environmental impact statement that discuss effects of the you know project which suggests you know there might be effects that go across the ship channel  across the ship channel says that this noise is barely perceivable to earth noticeable to humans and with respect to animals it would be expected to be minor in limited so you know i don't think that specific citation to information in a further document upsets the irrational judgment that the fish and wildlife service made about where to draw the northern border the action area that's important because the action area determines the environmental baseline and the environmental baseline is the basis against which the service charges the effects of the you know project for the jeopardy determination the other area where you know the real grant project might come in is through one hundred percent loss in populations from indigenous species and the court on that basis concluded that the surface had to provide work solution how about how the last one hundred percent loss of a population of an endangered or an endangered species population within the action area and here we're talking about that you know most of the tape that they're considering is not only useful for just one cat in the entire population and i think this gets example that the service commented about how you know there are much larger populations d across the rio grande in mexico and so when we're talking about the population here well that is the focus of the services conservation d efforts for the reasons laid out in the recovery plan when we're talking about jeopardy it is a species listed across twenty two dollars countries so that is the entire population or excuse me the species that we're talking about when we're talking  opponents argued that it was just a snapshot is one take it's one cat and that in didn't take consideration the entire period of time if you want to address  that so i think that's what the environmental baseline is d the snapshot of the current condition of the action area i don't mean in time and that is what the service has always said and it's handbook for thirty years the th circuit has adopted that is to sort of reopen past consultations of the service is done for other d federal action and it's been think about tape that has been authorized in in the new section seven consultations for those projects a automatically equivalent to the loss of a car that's simply not borne out by the record as was discussed earlier you know the service using the past state or be able to it has found no evidence of the loss of an account from any of those  projects and i don't think that's contested and the the environmental baseline is concerned with the status of the species as it is not with sort of regulatory d authorizations that may or may not actually have anything d to do with the actual facts on the ground particularly where we're talking about projects where you know construction has long since completed the scope of the authorization has expired and where the service is authorize case understanding that is courts review obviously there are relations between the biological opinion but the court instead of each one on the agency record before for the agency with respect to that project on the question of a fine and a jeopardy terminations i do think it's important to recognise that as i understand it it's been a challenge is only to the services explanation not to the question of whether it is lawful to authorize one tape and they said status of species with respect to the question of how do we know the service does impose notification requirements tricking and they did that and biological opinion at record three hundred and thirty dollars in terms of detecting potential on the argument that the service needed to analyze sort of thirty years into the future the thirty year lifetime of the project that's an argument we didn't have a chance to brief because it came up in the reply brief but we don't do that is it as consistent with the plain language of the regulation the definition of baseline the past and present impacts of federal state or private action and then the anticipated an act of post federal projects in the area also if conditions were to change going forward i think the thrust of the concern be well what if one of those other projects suddenly starts having impact on cat services regulations require for clarified if any clarity was needed if we are required to do this condition these are conditions of our certificate and we can put the shovel in the ground without st ok i think the thrust of the position is argument seems to be that there needs to be some in force and measure under the endangered species act itself it isn't enough that these would be required by her i don't think that's consistent with this court's decision i'm anemic southie where it's that it was reasonable for the service when they're looking at the effect on cat on endangered species to think about things that the developers are required to do in that case i believe it was something that was required by a state agency here or another federal agency in any event the terms and conditions here do refer to the conservation measures and i think the narrowest kensho ground for you to rule would just be to say it was reasonable for the service to choose those particular implementing measures which involve you know ordering and appointing somebody whose responsibility i to make sure that that occurs on the question of whether there was something wrong with the reinitiate provisions in the biological opinion about immediate halt activity other regulation only talks was and then on the innova question with regard to our case whether the nova needed to be considered in the biological and or rio grande rio bravo i think that starts and ends with the plain language of the regulation defining baseline and a cumulative to answer just things question the another project is pendent the rio grande and rio bravo pipeline so anything having to deal with timing of that project is not relevant to to our case and our case  lovely argument in this reply brief is that rio grande project should have been included in the nose environmental baseline on this issue sierra club and show that it was not rational for the service to conclude that a notice direct or indirect effects on the jack run day would not extend across the brownsville ship channel to the rio grande project site however the record evidence supports and services position the action area is not determined by proximity but where the direct and indirect effects of the project will be felt on the ocelot the direct and indirect effects of the noble project include habitat loss human disturbance possible vehicle collision late in the race the st three are restricted to the project site and in over took mitigation seriously in took steps to significantly minimize light noise one of the voluntary conservation measures and they aggressively eating plan that another devised to minimize or eliminate light when adjacent undisturbed habitat the service considered noise effects in detail and determined that the most severe noise in the from vehicles on the access road in vicinity of the project site this service has correctly pointed out that the actually area does not equate to the range of the species and therefore the service of as a side with the boundaries of boundaries of the actual area work given the distance in mitigation it was reasonable for the service to conclude that the identified direct and indirect effects would not be felt across a body of water on the north side of the brownsville ship channel sites pertaining to the rio grande project you see that they do not support additional position edition or cites a section four dollars of the nova environmental impact statement which is prepared for by for point seven pertains to specials species includes a discussion of the numbers direct and indirect effects underneath on the ocelot jack run day the discussion of the endangered cats does not include any reference to the rio grande project or the rio grande project site consequently petitioners do not and cannot cite and the only potentially relevant section of the house that might inform a definition of an action area and i would just add to this too th production size located across the shipping channel and geographically closer to the lagoon an acoustic refuge it also has a one hundred and thirty five mile long pipeline that spans five counties running to the north closer to the lagoon and a that opinion again focuses on the concept of action area and you only review sequential federal projects to the extent they are relevant which means that they are they are within the same the same action  a you have anything further counsel i do not ok thank you we have your argument this in so you take same time for consultation it involved informal consultation and it did not authorize incidental take to that project therefore in that situation the service that endangered species act did not impose the civic mandates on the s here we are involved in formal section seven consultation of the completion of which the service is authorized incidental take for this project therefore the endangered species act imposes strict mandates that the service issue an incidental take statement that sets forth be allowed to take rebel the reasonable and prudent measures it deems necessary to minimize harm from that take as well as this if it terms and conditions that govern how the applicant will implement those measures  is different here furthermore with regard to the depiction of the environmental baseline as simply a snapshot that is taken out of context that's one word in a paragraph in the consultation handbook that that also says that the service must analyze the past present anticipated in ongoing affects of those actions and and further that that environmental baseline must analyze in aggregate those past effects and ongoing effects intakes as they contribute to the degraded conditions and the precarious state of the species and that was not done here with regards to respondents depiction of the take limit that kind of backing away from lethal take the take limit here explicitly says that if the take for harassment and harm of an ocelot under the endangered species act harm explicitly includes killing so it does provided for legal take and it goes on to say including from the high risk of vehicle mortality in vehicle incidents are the leading cause of ocelot death and it is it is prescribed right there on the take limit he states that it in any event rio grande will implement the twenty five mile per hour speed limit however nowhere in the incidental take statement is the service requiring that and mandating that and to enforce so and then finally with regards to the jeopardy and alice says it is petitioners position that that it is this is about their failure to explain and justify their analysis their jeopardy determination if they have an abundance of substantial evidence and the record regarding the precarious state of the species and they simply have not explained how they've reached that no jeopardy determination thank you like to respond to a few facts the government lawyer mr snyder managed mr hallinan cited to the environmental impact statement  what is different for construction and the construction goes on for four years and regarding that it says that there will be just urban's from increased noise nighttime lighting and dredging within the b s that's disturbance and it talks about that animals have different sensitivity it boys frequencies things humans and construction noise will be audible at offsite locations and in the biological penchant for i know it talks about how noise interrupts feeding sheltering distribution all of these things or possible it's now sense that they are they just don't make the connection to the distance they just look within the actual footprints of the project and that's what ferg did wrong also inspire logical assess it didn't look at the noice extensions of its own environmental impacts take it just came in a biological assess however they referred to the facility as being within the on no action area and that's the facility that's not the marine terminal or the pipeline but the facility which is the phrase they use for example to refer to i'm know elegy terminal and at best earth was internally inconsistent but really they weren't they said  responsibilities so if her made a mistake if her contrary to it's environmental impact statement and they're responsible for what's in their own biological opinion and they don't mention the rio grande at all all of these explanations about why it would be in there none of them are in the pot and they act as it as if it doesn't exist which considering it was three weeks earlier and signed by the same officer in the same office it is is submitted thank you