and seventeen petition was seeking protections under the endangered species act for a herd of wild mustangs in montana that have very unique genetic characteristics the merits  the titian however was never heard by fish and wildlife service instead the petition was some marilee denied based upon a rule that it had promulgated just a few months prior and september of two thousand and sixteen that rule which for the  time in more than forty year history of the endangered species act required the petitioners give advance notice to affected states so in this case it would have been montana thirty days before filing in the in with fish and wildlife serv the purpose of the rule is try and i don't think it can really be disputed it's set out in the federal register in the preamble to that rule and that is to provide affected states a window of time to be able to make objections submit information provide their opinions and views on the petition before fishmonger even wildlife service even gets it in their hands we're here today because we believe that this rule is illegal for for two individual reasons the st is under chevron this procedure conflicts expressly with the intent of congress in section four and really does so in two ways one way is it dramatically alters the standard or review that the petition would receive within in the process under section four and again this rule dramatically alters in conflicts with that the nd if you're finishing your introduction of i'll ask him a question well as an alternative i'll just quickly say we believe the shover an argument is whatever reside in our our hope here but in the alternative if as counsel has argued all of those concerns about section four aren't implicated because this is all before the petition process start then there's just no legal authority for them to issue such a rule the legal authority here is found in section four age and it provides the bilby for the agency to palming the guidelines to regulate the section four process so if it's not part of the section four process then there is no authority here whatsoever my question was this and i'm hopeful that you'll correct me if i'm wrong in thinking i guess i was of the view that in order that you know regardless of when it arrived whether right before you filed or this is after you file that the services can't take that information can they really have to confine themselves to the four corners of the petition as well rule that gets into the question of is not allow who are not and i think the morgan work line of cases make it clear i don't think opposing counsel here would even argue that if this was the agency making the submission request for s that st question i think is answered and the only question is why should they be allowed to compel us to do something that they can't do and i don't see that that would make any sense whatsoever i think think going a step further though it's really important to understand that it's not just the standard of review that congress dealt with in section four it also understood the role of the states and foresaw that states may not necessarily be eager to have ninety days before you provide public notice in the federal register and here's the kicker and provide actual or notice to the states and allow them to specifically affected states those that have these animals within their  is congress understood that the states may have serious objections beyond what the biological reasons for listing the species would be and therefore defer their participation until  obviously when they were literally proposing to take action and then to provide them a very unique role saying what are your objections how can we deal with them how can we proceed because we believe the species deserves listing congress is intent was not just with what happens at the ninety days cage in the four corners of the petition but the states and how to handle well the the district court called it a courtesy action but she only could do so so by actually divorcing it from the intent i mean this isn't a notice that's required at the time we give them the petition there's a reason why they said thirty days in advance and wildlife service and it even goes further than that in the preamble and we'll use that information but that's the problem is that's what happened with morgan wick you don't want potentially one sided information or one narrow set of views to be injected into the to the process at that time you wanted instead to be looked at on its merits as the petition you know me yes certainly certain requirements like having more open review period that where you would have some objection to it other supporting it and those views could be balanced out using the best available science that's available morgan which itself is a great example of how there's never been vetted we need to look at it before you make decisions on it and so that's the concern here and i don't mean to put the states in a position of saying you know they're always opposing things but congress again i mean by setting up a process that and gathers information and you can even see that information really well i don't think so i think they could use the internet i think to verify the material in the petition to determine with you know what its sources are morgan where it was literally like calling up the watch in that case it was just a staff member sort of like innocently on a bill a bulletin board typing in hey we got this petition and the result of the information and the district court there said no that that you should never have even done that right if you want to do that be fair move to a status review  essentially that a reasonable person looking at the four corners of the petition would deeming them to be you know accurate and true and of course a lot of these petitions are put together by professional organizations that have you know the justify that if that's what their genes on they need to point to why it's not credible why it's unreliable or why the information has been rejected but going back to this question of what they're looking at it's a four corners it's a reasonable person it's whether if the information is accurate incredible we assume it is unless there's reason to believe otherwise then let's grant that ninety day and that's move or were injected as a point of objection to the petition right that's a lot different than asking for that information and then put it in the mind of the state or another requester hey i better come up with something here states you know close in time to the filing of your position is that something that could be policed on the backend in other words once you've got the ninety day they get a determination would you be able to i  but here we have an opportunity to say why are we even doing in the st place yes i mean the answer is just like in morgan worked in the other six cases they could only justify the agency can only justify their denial t she was going to separate the question of notice from you know any potential misuse of information but why should we be why should we have to comply with the rule that's in our view illegal only to you  have a different nature of an injury later on down the road a year or it could take a year or more for that to happen here you know we have been denied access to the agency based upon the s the ninety day determination was part of the rationale so as to the rush now yes that is part of the rationale but there's a simpler rational as well which is just the courtesy notice idea that states at that point they can say no you can't do that despite the organ watches and we have a completely different case from a different record but here we have a modest requirement and that's where the services in denying the petition or what is your position on that question petition and maybe you know just general background but they're not permitted at the ninety day stage to take into account anything that's received from this if we agreed with that position i guess i don't see how we could rule for review for the government as still th requirement no i don't think so and there's and there's more that's something only justification for the role of the rule also explains that look states have a role to play in this and if it makes sense for us to let them know we did require th practicable so providing a simple notion of firemen thirty days in advance is this consistent with that statutory instruction if it is a benefit to the states and it could be a benefit to the services down the road  very well i agree with the council on that point it was a step one matter so if the rationale for this rule that well in our experience you know once we get past the ninety day determination when we do battle notice  state at that point that doesn't give them enough times in the just a bit in the twelve months remission i could understand the rationale i could understand the rule about where the rationale but the rationale here is totally different than saying i think we want the states to give us information that we can use in the ninety day determination and that's why just come back to it step two if we just agree with that and we think no actually that is not permitted congress did not want this the services to  be reviewing that kind of information outside the four corners of the position then i guess i'm just thinking that step two we could not say this is reasonable because it's making them do something that has no purpose other than to provide the services of information and they're not allowed to look  at that stage of the case i think you know there's nothing in the actual text of the rule without justification so that all preamble language why why the service and if you think the rule makes sense is a good good governance idea and if you look at sixty six or sixty three there's a long discussion of why they think they have the discretion to kind of consider contacts and why they provide this notice maybe lead to additional information in some cases and maybe not in other in the hall the cases  and that they don't need to give the doesn't make any sense for them to consider these positions in a vacuum and that's because the sources own language that you know if there is a you know definitive piece of information out there pick one small piece of that is that this idea that well it's possible some states will submit information we'll consider it during this this initial ninety day period but that's the whole justification for the rule  process i don't think it i don't think it's getting ahead of itself at all it's you know there's a there's two different standards than the ninety day standard is you know that is is there substantial substantial scientific or commercial information it or not it is or social information or not is one that they get examined directly the question of well do they go too far beyond the position but i don't think there's all this rule which doesn't solicit any information just requires notice of causing the problem that's a separate problem space could get notice in any number of ways and decide this of information and and then the question is still well has the service correctly information but then the question as well is did they mess up the right to define the or not not whether all that's a procedural mistake that a state decided because they got no to submit information the question is what was the service do with it if anything in that as the district court that a later case that i'm sure you have to understand if if you know wyoming or montana here are some information that mr harris disagreed with in the service interval why on that would be the that would be an this rule st of all for more than forty years they haven't seen the need of requiring petition or divide they have notice to the states nd of all if the rush like the gunshot and they meet all these deadlines and they don't mean morgan which itself shows how long just a ninety day filing case could be but a congress set up a timeline that's rarely met by the agency but congress clearly didn't think that it wasn't all it does is say that the states and the federal government should cooperate in protecting endangered friend species those bases are on the endangered and threatened less right how to fund programs recovery programs so they've