determinations under the endangered species act on petitions for thirty nine different species of animals that were subject to citizen petitions and it is far back as two thousand and ten fish wildlife service  notice require a men the notice letter you have to have the case dismissed first and start all so i think i agree with the court i don't think it's going to resolve their different district courts are treated differently i was going to start with informational officially with us the standing question and that's the quote was the start of the notice question friends of animals primarily seeks to invoke article three standing here under the theory of informational standing which has been recognized by information various courts have interpreted that including the supreme court to state that the test is simply whether in the plaintiff view a statute requires one to make certain specific information available in other words i think the planet needs to make a plausible argument that there's a right to that information here we are listening stiffer and from information aren't you boy in the sense that it's now before you type statute of getting preexisting information but more of a finding that you're entitled to one way or another by the by the government so right can you address i think there's two aspects to that question the first is whether the statute itself asked to have an informational purpose to this at its core like  i don't think that's the way the courts have looked at it over over over the time for instance and in the supreme court's case involving the fair housing act the court said well the fair housing act itself isn't about getting information it's about in air act no one would argue that the central purpose of the clean air act is to provide information but it does have a provision and in fact according to that ethic orpen made a showing that provision within the clean air act require disclosure of specific information regarding emissions standards and how the obama protection agency what methodology methodology is they use and determining emission standards likewise in america can do the six circuit was looking at the clean water act and again it looked at the specific provision that was provoked by the by the plaintiff in that case as reception for its not just a finding findings are supposed to evaluate the best available commercial and scientific data to determine if any five listing criteria is mandated protection of the species in addition to the finding in cases of warranted decisions the secretary has to issue summaries of the data and she may even also have to reveal how that data connects to the criteria if a in a in a situation of a war to preclude finding the secretary has to also provide an evaluation on how she reached that conclusion so it's more than just oh by the way we found the species in danger it's actually some substantive information about the status of that species both in the in the real world and legal and i think it's important to note that congress you know provided for of flow of information there in the listing process under section four the secretary has an obligation to seek information from the public and scientists from advocacy organizations and utilize that information in her review and then has an obligation to return to provide that information back so that organizations that are interested in protecting the species will have some places to move forward after that decision is made whether it's positive not positive or positive  information indicating that the petition action may be warranted the secretary shall make the one of the following part where the court really just focused on that present substantial information and sort of writes away the within twelve months after receiving a petition and sort of suggest that that isn't the issue here sorry interrupted isn't the issue here and i realize it's tactical but the sixty days as the government says you have to give a sixty day notice rule of suing regarding the allegedly overdue twelve month finding right but in our view and i believe is the view of the ninth circuit in ba regarding the alleged when we did the district court doesn't disagree our notice letter included we waited for twelve months and then we sent a notice letter at the time ninety days findings had not been issued on all of this these either so we alleged both violations by the time we brought the lawsuit though they had started here in the ninety violations so the complaint only alleged twelve violations but the you're saying that you don't need to file a new notice because you've never fired or waited way more than sixty days with respect to twelve month violation and i guess  contrary position is no because you were claiming didn't write men are raw it is until the secretary made that found under subparagraph you know take some practical so that's you know supports your position by the language also that says that there's a twelve month obligation with respect to a petition that is  meant to save the is the obvious if at some point you determine that the petition did not have substantial information then you can cure your violation of the twelve months by making that determination instead it's  or negative ninety day germination the language doesn't say unless you just states the obvious even if you're in violation after twelve months that doesn't mean you have to make a trauma finding it's still cure your violation by issu so what they're saying i think is that you have to wait until there's been a ninety day finding to bring a suit challenging the failure to make a twelve month determination and there and two and you need sixty days notice after the ninety day finding before you follow suit challenging the failure to make the twelve month determination and i realize  the first part of that sentence within twelve months of receiving the petition it completely undermines well the statutory intent of section four and the legislative history congress didn't want the secretary to have that discretion didn't want the secretary be able to delay in fact or they wouldn't be able to delay indefinitely i know your brief raises the concern that there could just be indefinite away but the theory would be if you haven't made the ninety day finding in a timely way you sue to challenge the force the making of the timely day and the ninety day finding finding once that's made you then consume for the failure to have the twelve months of term nation but you have to give we sixty days before you do that hoops to get two quick responses to those who they still defeat the purpose of the time terminations because as a government argues in their brief they believe the ninety day has it's a certain amount of discretion it's not even clear that they believe that they have to make the ninety day within twelve months right i think they're probably wrong on that but but i agree they're making that argument and in addition invoking the judicial process twice is going to drag that out even though i agree and i think that is just goes right against the intent of congress it does your boy you could argue that both ways but the statute does seem pretty clear on the sixty day notice before before you sue to change under particular violation well but th know the ninety day findings a positive but the court rejected that the that quote was from the district court that badly overturned the ninth circuit and badly said no you are in violation of the twelve month requirement at twelve friends of animals has failed to comply with the mandatory sixty day notice requirement in the e s a not because the the petition to the service the findings on the petitions were delayed past twelve months after the petitions were file because the notices the notice did not identify or the notice was filed prior to the service having made the positive ninety day finding on the petitions it is clear in the south that for there to be a twelve month that the petition to list the species doesn't require substantial and doesn't include substantial information showing a listing might be warranted it doesn't need to make a twelvemonth fighting in iraq if you step back one step and think about the purpose of the statute  so so this is just a a mechanism for a citizen to come forward in the question and suit some of the duties there and it's not as if there is no duty on the secretary and less than internal tension has been file animals hasn't made any kind of allegations along those lines the situation here is that friends available to petition to list the species and then once once friends venables petition the service has ninety days to the maximum  petitions that it doesn't need to act on further or so because there they don't show a basis in scientific evidence for a listing but i think you raised that notion that the secretary does have the obligation because they have come forward and said it can't be disputed in the real world and in fact the secretarial timidly agreed in the real world there is evidence that these that these pieces are are and endangered so holding out this sort of hypothetical isn't going above that reality and that responsibility of the secretary is not a political potential condition which is there is nothing to it as an obstacle to the suit going forward it just it doesn't really seem to comport with the statutory intensive that's what i'm looking for some sense of why does this statute in its objective work better under your view than under the years congress required for the sixty days of notice to for strictly the language is plain and the supreme court has held in halls from that similar notice requirements in other saturates must be construed strictly when there's plain language giving that notice required right well from the didn't have the sort of new wave problem that this case represents of the ninety day twelve on and i don't think that friends of animals right and in the government's view strict compliance requires notice of an actual violation that has already occurred and that in the real world that's what i'm pointing to is like what is this about what are the violations we're talking about evidence of endan violations of the services you know failure to properly promulgate listing or if if the violation doesn't have to have occurred when a plane it gives no doubts that defeats the purpose of the notice provision which is to allow the as was the case here than the agency can actually remedy the defect but they're worried about the two steps in the real world meaning a lot of the way that's correct but there's a remedy for that as well the remedy for that is what they started to do here which was to make it on reasonable to lay claim on the ninety day findings and they could have they sued on that big he says right and then after they sued the service issue the ninety day fine so in the moment the moment the ninety day finding is made in this case if they give notice to the us to the government then they can sue for the failure to make the twelve month finding within sixty days after that under got their act and that is not a burdensome requirement as as the supreme court also found in hospira of the court can look at the equities of requiring this additional process and where the plaintiff controls the timing of the suit it's appropriate for the court to hold it to the strict statutory that is not time no because the friends of animals can bring in on reasonable to lace you challenging the services delay in making a ninety day right so for example if under friends of animals you have the law the service has to make a ninety day finding within yes that's right and when your point is that it should be resolved in one reasonable voice suit to challenge the ninety day that's correct because the earlier that's correct and that is because the timing of the ninety day finding isn't it issue month requirement but you have to have sixty days notice before you file suit for the failure to make the twelve that's generally correct and i would also i have about what you said generally is for anything i'm missing or that into terminating whether the court in determining whether an injunction immediate months after the ninety days because as a practical matter to meet that twelve month binding requirement the service really needs to make its ninety day finding pretty quickly and then this is again under friends of animals you go it takes it takes the service about nine months at the point at which the service makes a positive in a ninety day finding it takes usually at least nine months but it's to make to you whether to eat into that time i mean you personally this is up to the  insofar as as we can reasonably do it and we're busy this is the service this position is not that it can take as long as it wants to make the night you finding that is not the government's what is the government's position on what what limits on the to the maximum extent practicable and that language is cabined by that it in determining whether it's practicable to make a listing a ninety day finding the service can only consider things like are there who have a higher need for a listing are there more urgent needs within the listing program that it needs to attend to before making this particular ninety day writing so there's some cabin in there and there's listing priority guidelines that the service is an active that it needs  indicating which makes the decision on the listing petition that listing is either warranted not warranted or warranted but are cleared at some point my understanding of the difference between your position and their position is a maximum of sixty days difference in this sentence and tell me if i'm wrong which is under their theory they can charge challenge the not twelve month finding without giving the sixty days separate notice think the main difference between the government's position and friends of animals position is that the notice has do you have the notice of a violation of past due it identify a violation that has occurred and i say twelve months comes up and we follow battling actually and say at least that's a deadline on your ninety day finding your view is if friends of animals has filed a petition on a twelve month determination if there hasn't been a ninety day to terminate that's correct and that's what i think i am saying the deltas the sixty days because under either theory as i understand it there's going to have to be a ninety day finding first yes that's right yes and i would point out that even in the district court decision the district court didn't order the service to make twelve month findings on petitions that it had made positive ninety day finally i'm right because you the service is never under no obligation to make a twelve month fighting until it makes appropriate if there was a violation but it didn't order it didn't order the service to make twelve month findings when there had been no ninety day fighting in the first instance what there's a ninety day farming they said hey we can immediately be in court forcing the twelve months determination you say you can get in the court sixty days from now to force the twelve months from the yes that's correct after you give notice right right that's exactly right ok if the court has no other questions position on the government's position is that it is jurisdictional the court does not because it speaks to a court's ability to hear the claim but this this circuit hasn't addressed the question of whether it's  and we could rule on it without addressing standing that's correct because it's a no other non merits threshold graham that's correct i would like to briefly talk about standing  friends of animals position on stand friends of animals relies on fifteen forty g which is the citizen supervision of the e s a and fifteen thirty three b s publication requirement to assert it has informational standing but the supreme court harness has held that fifty four e g the citizen supervision does not confer standing it only confers the right to bring a lawsuit the plaintiff has to show separate article three standing from a separate concrete injury that results from the alleged the service has to promptly publish its findings in the federal register a requirement to promptly publish findings in the federal register cannot give rise to an informational right the violation of which by itself creates article three injury sufficient to support standing because everyone would have standing exactly every time that's exactly right and no court has ever gone so far to hold that kind of statutory language create such a right when you look at it and also this ties into the purpose of the endangered species act in that publication requirement the purpose of the publication requirement is not to provide information to the public in and of itself for example for you and the advisory committee i feel lection campaign act and the supreme court cases all serve a sunshiny government kind of a function they are meant to create access information that's helpful in and of itself for the public and even haven the fair housing act that language in the statute prohibited the  false provision of false information on the about the availability of housing on the basis of race so the informational component there was directly linked to prohibiting discrimination in housing it wasn't just a requirement to publish a decision in the federal register or and the purpose of those informational provisions in those statutes again didn't serve the didn't is unlike the essay here which is meant to get information information because it says it's amid the best available science in its petition to list the species in the first place but there's also the informational and i'm not sure that they have presented this they do in their complaints of their members who wan you know doing these species and if if for example you were ization that was devoted to complementing the role of the government in pursuit of any animal habitat and you wanted to standing has been contested and friends of animals has and subsequently submitted declarations and i would also say even allegations that the in the complaint they say we have the members who enjoy enjoy this habitat enjoy these species but they don't give any additional information aside from that one sentence so i'm not even sure that that would be enough if we were just looking at their complaints but the in the hypothetical you pose i'm not sure that  i hesitate to speculate whether an organization or even what whether friends of animals could show an informational type are arising from that yes say that it played something different but the bottom line here is that friends of animals that the kinds of harms the serving make clear that it is really seeking to enforce the services twelve months fighting it just want the service to make the fighting it's not looking for information that the service might per views about where it's focusing their supporters look at what we're doing this is a worthy this is where the activity or maybe they need to be able to refocus because their supporters after all these years are going to start to say that's not where the activity you are barking up the just general information and science to what are you doing with our petitions again at a friends of animals hasn't made those kinds of declarations of harm first of all and second of all they have i mean into my they're they're checking they wan that they need to know as to the fact checking a federal rest of the only kind of checking that they were alleged is the checking the federal register and they have an alleged how much time they spend on that how much it costs and in fact you can set up an automatic notice in the federal register to send information and they also say that it's part of their daily duties so they don't say as as this court has held in as the supreme court has held for an organization to show standing it has to allege just that it's discreet programatic interests i mean that's really what i'm saying that actually it has a material impact on them beyond the outlay of time to to click the button in that had it's it's a reflection for  them how they're performing as an organisation and that in turn that's the only their supporters inference the only thing that they have alleged here along those lines is their potential fund raising in the us and that's a big one but this court has has held that fund raising impacts are too speculative to support standing and that's a natural national taxpayers union decision and in that case it actually submitted a declaration from a donor saying i'm not going to donate any money and the and this court still found that was too speculative to support harm so we only have two kinds of harm that alleged resource impacts that president is made fund raising impacts and checking the federal register and those are not enough in this court and going back to your hypothetical i don't i'm not aware of any precedent of this court or the supreme court that has held that the kinds of allegations that you that you've identified here would be enough to support standing because there's no even for example in this court's recent peta decision which judge henderson authored the peta doctor ations were so much more detailed than the declaration submitted here and peter had said we spent ten thousand dollars a staff attorney time and it talked about the ten investigations that it and that it had to to undergo on its own to compensate for the department of agriculture's failure to act on it difference between saying which is what friends of animals has said here that the that the provision that issue creates a right to information the violation or the deprivation of which alone without alleging any more is enough to support just start by saying we don't think the essay is like foyle i think what we're saying is we're not alleging organization stand here we're not alleging standing of our members under luan or alleging informational standing in a ken's and i really think the american can decision six circuit explains that it is a little bit different of a standard congress has provided the injury it is a concrete injury of information is withheld what we need to show what the addition that we need to show is that we have some unique interests some something that's different from injury you may have suffered from the withhold in this information that is different and makes it more particular allies to us on the sixty day issue of kayasth yes my understanding of the difference in the two positions and correct me if i'm wrong is once a positive ninety day finding has been made you believe you can be in court immediately to challenge the failure to make the twelve months of terminations so long as you've given me a prior notice that challenge to both words they would say you have to wait sixty days to challenge the failure to make the twelve month determination i think that's right i mean we think that if they have whether they've issued a ninety day finding or not at twelve months congress intended write them to be to have them issue a determination but it soon must wait right and and if they haven't even made the ninety day finding and you go into court and we're after twelve months i think you're going to have a successful on reasonable the way suit that will force the ninety day finding then once the ninety day findings made your position would be we can immediately also argue about the failure to make the cold months of term nation they would say no you have to give notice and waited sixty days before doing in court about the two twelve month determination think that might read a little bit too much into the relief we would be seeking and i think that talking about what the nights are in the back and a better case about you know ordering only for the ninety days and not the twelve months i think after twelve months in a situation like we have here that what the court needs to order them is to comply with section four b three b which as i said earlier is to make a twelve month terminating more current here the defect by make it a negative ninety day finding it's overdue and both are overdue you can do either you're not now but they the service will and they would say you're right to the extent they don't quite say this crap think they would ultimately say your right to the extent you can force the ninety day finding to be made but then we get at least another sixty days to make the twelve month determination at least before you can complain about it in court that's when you would see it and you would say no it needs to be immediate congress defines the violation right and so that's why i was referring to a sixty day delta correct  the only thing i'd say lastly is i just wanted about holes from real quickly to clean water act case involves every detail the technical violations for which clarity was necessary in the notice requirement did not involve mandatory deadlines for which the government knows that mandatory deadlines they've known since one thousand nine hundred two they're trying to recreate the statute here in order to give them relief from what congress did not intend them to have and that's discretion on the in resolution of the petition that twelve months and it would only incentivize them to wait twelve months to make every ninety day finding from here on out of the court was to buy the argument so thank you very much parrish thank you the case is submitted well presented on both sides thank you