seventy eight to narrow the concept of critical habitat and he did that in response to this court's decision in hill and an early regulation that allow critical habitat designation for population expansion beyond a species present habitat in the provision that requires designation of critical habitat section for congress limited the services power to designate can any habitat of such species which is then considered to be critical habitat in section three five c congress commanded that critical habitat shall not include the entire area which can be occupied by a species and those limitations show that congress intended that areas that can be occupied by a species that is its habitat mock the out of bounds the out of bounds of critical habitat and it would be put to bishop offer you a hypothetical just to understand the scope of your argument which is a bit unclear to me so in my hypothetical there is a species which like this one is in only a single habitat and for whatever reason that habitat is no longer going to support the species diseases come a predator has come it's gotten too hot it's gotten too cold whatever it is that single habitat no longer will be able to support the species and there is no habitat that at the present moment there is no other habitat that at the present moment is capable of conserving the species over the long term but there is a habitat that with only slight improvements what the government calls reasonable efforts can support the species ok so habitat a where the species is no longer any good habitat be it can't it wants to conserve the species if left just as it is but it only takes reasonable effort to conserve the species can the government does a grenade that area as an occupied critical habitat  has to be habitat now just to be playing the part of the problem with that is that the government when the government talks about reasonable changes which is what it does here what would be involved in on this piece of land i understand that you think that it's any more than reasonable changes that would be involved here but in my hypothetical that's why it's a hypothetical i'm saying i'm stipulate and i understand that it's pretty minimal stuff it's you know  k a few holes plant a few trees that sort of thing right i don't rule out that the government might be able to justify critical habitat there's a nation when there are de minimus changes where you're really only talking about digging a few holes maybe something more than to minimalists but but but no i see what the government views as reasonable changes such to allow the land to support the species over the long term we don't think so just  sorry we know that habitat doesn't mean just where a species lives i mean that's that would be the common understanding of the word habitat but the statute clearly goes beyond that and we know because it says it's statue where a species could live right it's out there also habitats that are outside the geographical area occupied by the species so that the statute is not used and the kind of garden variety definition of habitat no i disagree with it just as carrying three five c says the critical habitat cannot be designated beyond the entire area which can be occupied congress was thinking ginsburg it's it's it's incorrect to label that as habitat because the frog spends only less than a month in breeding ponds for this to be a habitat it has to be land which bird includes a summer habitat a winter habitat and the places along the way where it has to where it may prefer particular trees you have a contiguous habitat and the roosting trees clearly can be listed as critical habitat if they meet the other conditions if i could go back to the statutory basis for your position because to my mind it is a counter intuitive result that the statute would prefer extinction of the species to the designation of an area which requires only certain reasonable improvements in order to support the species that seems a counter intuitive result and as i say it is not c m a result that's demanded at all by the statutory language which contemplates that habitats will exist even beyond the areas where a species currently resides just thinking there is a difference between an area and an occupied area that is habitat which can be occupied that is the limit the congress set must regard as a deal and with a very different problem that was dealing with a problem where a species can reside in many any areas outside of the area where it resided and the statute was making clear that just because that's true you can't go does have nade all of those areas habitat but this is a different problem from the problem that we're talking about where there's only a single area that might conceivably prevent extinction of the species and you're saying that notwithstanding that it was it's only reasonable efforts that would allow it to conserve the species that's not permitted it is not and there are clear statutory indications was that it was mr bishop do you agree with the proposition that the choice in justice kagan's hypothetical is between designation the land as critical habitat and extinction of the species are there not other options available to the federal government there are other options and there are other clues in the statute language apart from section four and three five see what this court said in sweet home was that the section five  well suited for buying land that is not yet but may in the future become habitat but was this court's decision in three times in addition i will point to the definition of conservation in section three three which you would think if congress had in mind that restoration and creation of new habitat which is what will be required on this land that we don't doubt if that was what it had in mind it would have used one of those terms for the list in three three talks about maintenance of habitat in translocation it does not talk about the creation of new habitat all the restoration of habitat back to the period before human intervention but i guess what strikes me about the statute mr bishop is that really all over the place you get these references to the fact that habitat isn't just sort of there and perfect always that habitat requires things to be done to it you know even in the definition of occupied  critical habitat it talks about special management that needs to be taken in order to protect the habitat and similarly in the definition of conservation it talks about you know the need for habitat improvement the all through the statute there's this idea of it's not just an on off switch that there is habitat that needs to be maintained and proved and so forth in order to fulfill the concerns with the landowners plane is currently right that is you are not commanded to do anything you don't have to do anything at all to to diminution in value of tens of millions of dollars that is what it says in the agency is economic analysis that there is an immediate loss in value and the reason i think for that is fairly easy to easy to see anybody coming in will recognize that down the road they have to deal with with the critical habitat designation we have also spent hundreds of thousands of dollars completely planning out and  obtaining a rezoning of this land for development those are wasted expenditures at this point that was done before the critical habitat designation we would have to go back we would have to revisit those where hauser the agreement between weyerhaeuser and the owners of the rest of the property is that we would expand the money and they would provide the land we also own one hundred fifty acres we provided all of the money for the development and we own one hundred fifty a s that have been designated that have immediately lost value as a result of this chemical back to a question as i was reading the evidence in this case it appeared that there was a dispute as to whether this fact survive maybe not as healthily as it does now and maybe not for the very long term but there was evidence that the frog was there for i think ten or fifteen years while timber cutting was occurring there was some scientific evidence that there were stumps that the frog might be able to survive in as opposed to the i think that depended on what definition you gave to have habitable if we give a different definition what would be the minimum if it didn't include the p c that you think are necessary  because i don't know that i'm not the pipe has to be an optimal survival place and if it doesn't have to be optimal what would otherwise be a minimum that this property is not just not optimal it is not habitable and this is only the litigating position of the department of justice the judges below who looked at the fifth circuit judges including the majority not just the dissenters who looked at the administrative record here which is what this court is reviewing not litigating position of the department of justice concluded and this is from the majority that the service had found that this was unit while most currently uninhabitable it's page twenty four a of the petition appendix and just to put that definition was never provided the definition that we provided was the definition that we have provided to this court which is the dish dictionary definition sandbagging it's speaking the question which is i don't know that the circuit actually accept that your definition or whether your definition for the reasons i indicated  just a few minutes ago covered all of the conditions that could make for survival for the species as i read the record there were suggestions by some of the scientists that with just not what the minister of record shows are well i don't want to argue the record now the question is if i come away having reviewed it with a question about whether the circuit actually addressed that question and defined what it thought the minimal requirements for a habitat were wouldn't be wouldn't the answer be to remain in this case and let it make that determination if you thought that habitat meant something other than what the convention says and what the dictionaries in the word habitat is used for almost every time they talk about critical habitat which is a defined term but the keywords that follow it are typically essential or necessary so something like  in thinking about it i thought well there is necessary we're going to be in real trouble without it but it's not the only thing that's necessary water is necessary to so you could have for mammals situations where they need air and they can't be submerged in a swamp so this land will have the air but it's a big swamp but maybe we'll drain it so  drain it it's going to be fine and if that's what the statute basically means you get the idea where i'm driving then this is a typical agency case because after all if you can't drain the swamp then the air is irrelevant but if you could drain the swamp pretty easily well then the air is essential and you better be sure you have it now on that the agency has found well it's not that hard to drain the swamp good chance will do it good chance will do it you say ha they don't know what they're well i mean you're polite about it and and so you don't reason what we have to do we look at the record it's the discretion is given to the secretary that's a lot and we say did they in this case the secretary exceed the discretion that the statute gives him in thinking they could drain the swamp i e they could make a canopy good chance it'll happen curry a typical agency case is that how i should look at it no not at all the ministry of record here shows that this land would have to be totally remade it would have to be made to look something like that picture on seventy seventy seven and that is not something section four b two is that the agency may exclude any area from designation if the secretary determines that the benefits of exclusion outweigh the benefits of inclusion so it's not a may statement from congress it's a may if may exclude if these other conditions are met it weighs the benefits of exclusion against well it is in may if but if the other conditions are met it indicates because of the use of the may rather than the use of the shell doesn't it that the secretary still has discretion on other words if the conditions aren't met then the secretary can't exclude but if the conditions are met the secretary may exclude if he wants yes ultimately there's it's a discretionary decision i think the question is whether state farm review of that if clause is appropriate in this court has already decided that question in bennett a unanimous decision of this court where it can see the both parts of that be two provision and the court said it is rudimentary but discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decision making and the government itself has conceded this if i'm sorry no not at all it may be can all be up with us let's suppose for now that i would agree with you in that we could review this what more would you expect the secretary to say or could say given the state of scientific evidence before the secretary and that's not clear to me a says there's just not any evidence of the benefits of exclusion that i that i can put a number on and isn't isn't the way the statute written put some burden of proof incumbent upon the landowner or lessee to come forward with something quantifying the benefits of exclusion right well certainly it's permissible for the agency to rely to characterize the benefits of inclusion as being biological which is something that can be described but no quantified but on the other side of that ledger the agency has to meet state farm standards in identifying and i want to hold on that my question is what more would you ask the secretary to do the secretary did quantify the economic benefits exclusion and then compared to the benefits of inclusion there indeterminate and therefore the burden of proving exclusion has not been met and the burden it seems to me rests with you so suppose i there is some judicial review possible here and we need to get into the how many angels dance on the head of that pin if you if you've got no real complaint at the end of the day with the adequacy of the secretary what we do we do have that complaint and certainly a remop would would allow us to explore that but you know under state farm the input could you explain that to me yes the inputs into the decision have to be fair and reasonable in the connection between those inputs and the ultimate decision have to be let me give an because it found that unit one is only zero point five percent of developed will land in the parish there's a big problem with that included as developer will land everything under into the south of interstate twelve which is not develop all because it flooded in hurricane katrina everyone from that area is moving up to the us to the higher ground it's said in addition it acknowledged that unit one is particularly attractive for development because highway thirty six runs through it it's an attractive area for development because it's connected to centers of where jobs where the jobs are and yet so we have a unit one that is already zoned it's outside the flood zone and it's well served by roads connecting it to jobs for the service treated every undeveloped area in the parish is fungible and said this just isn't an important development area even though some tammany has its brief explains in this case is no it's a very important development area  that is what you get when there's no judicial review when an agency thinks that there are no controls over what it concludes and the economic analysis is riven through with very basic errors of that kind and i submit that without the possibility of judicial review in cases like this that is what you get a very and satisfactory balancing and that is what state farm is for state farm is there to ensure that when a balancing like this has to be done when there are multiple factors to be considered that the agency gets it fairly right just what those factors are and then connect the dots between what those factors are and what its conclusion is not the one lin unexplained conclusion that it had here that it was not going to exclude i can say the rest of my time for a bottle please thank you mr bishop is to be conserved and the risk of its extinction reduced the area involved here is essential to accomplish those explicit statutory purposes that therefore was properly designated as an occupied critical habitat petition a decision has to be your argument is that critical habitat doesn't have to include all of the elements for habitability because you could undertake some restoration that would provide whatever is missing the draining of the of the swamp but you know if you have the femoral ponds in alaska you could build a giant greenhouse implant the longleaf pines and the frog could live there has to be presumably some limit on what restoration you would say is required yes and what the what the service found here is that restoration of the uplands could be accomplished with reasonable efforts the central that the central  habitat reasonable efforts that the landowners would have to undertake voluntarily right the landowners or if they entered into an agreement with the with a conservation group the nature conservancy has purchased land at the other at the other location where the  told you they're not going to do it that that's true but the operation of the act it can't be dispositive what the intention subjective intentions at this moment in time by this particular owner of the property are that the the act turns on the on the status of the land not the intention of the landowner now that may be taken into account and that at some point in deciding whether the land is essential the proposed regulation that interior i don't understand why don't you said that  you can be designate is critical if some restoration can take place and it's far where we are right now is the landowner saying we're not going to do the restoration you want right so you just say well we're going to designate it anyway even though the restoration won't occur well the the the question of whether it it's whether it is capable of supporting a population is basically a scientific one section four b two says that it should be based on the best scientific evidence available it's about the status of the that with with the change right in this support the population if they make this change yes there will but what's the limit i mean you could require say well this this piece of property in canada could accommodate the species so long as you invested one hundred million dollars to put in a femoral ponds change the loblolly pines to longleaf and do all this well if it has it has to be according to those service here reasonable efforts and what's the definition it's something that i mean for one thing i think there's a big distinction between weather the weather in this case the upland habitat has been transformed to such an extent that it's i think it runs throughout the statute frankly runs throughout can you show me where well a number a number of places i would i would i would refer to the definition of critical habitat both prongs talk about i don't see reasonable efforts there now not reason it's not there but no but it talks about conservation what's essential for conservation of the species conservation is defined as all measures necessary to bring the species back to the point where it does not need  don't got a section seven the government has enormous powers to help species whether in critical habitat we're elsewhere right there's nothing preventing the government from purchasing land or taking other actions to protect endangered species whether on critical habitat or elsewhere right but the court said in sweet home for example that the fact that the government can purchase land or make grants does not undermine the operation the critical habitat a supplementary power though you'd agree it it is but for one thing the designation of critical habitat serves serves a very important function in educating and identifying the areas where the species could  be could be used and it's also import recognized this is a proposition not limited to private land it also has to do with public land so having the expertise of the fish and wildlife service identify those areas that are necessary for recovery  species can for example identify the areas that would be that a conservation group might want to enter into an agreement with the land owner to conserve that that the that the state might decide to purchase so that then if the cation of the habitat is not just in terms of triggering section seven of the of the act you this i think your argument requires you to provide some definition of reasonable restoration now in this case is going to be spun we've already heard questions along this line as a choice between whether the dusky go for frog is going to become extinct or not that's not the choice at all the question is who is going to have to pay and who should pay for the preservation of this public good now it may be very difficult for a lot of people to shed tears for a big corporation like the one in this case but let's suppose this is a fact this is a family farm and the part of the home the land is designated or good part of it is designated as critical habitat now to what is there some formula some percentage of the value of the family farm that would have to be required for this reasonable restoration before that becomes unreasonable can you provide any guidance on that i don't think there would be a hard and fast rule i think if you if you look at that if you look at the nature of the land i mean for example here what would the restoration be  i've read this i thought it's an easy case not the result but the concepts see the statute books are filled with words like reasonable and right here it says that the secretary says a determination by the secretary that such areas are essential to me that calls up is it reasonable or isn't it reasonable it's not reasonable to say that this area is essential if the frogs will die anyway because there aren't enough trees ok so let's look at the picture on page fifty seven and the picture on page fifty seven shows an area which has very few trees and we also know that this is a logging company and so probably they have lots of trees they like trees forever but  to lot of trees planted there and so what is it in this case and i thought the case is no more than that was it what is it in this case that makes discretion statute books are filled with words like we give discretion to the secretary that makes this within and not outside that delegated discretion to the secretary to determine essential well i the act and as you pointed out that says the secretary it's not the act that i'm thinking out i agree with you that it gives him lots of discretion but the chief justice is first question was surely he can't require the building of hot air greenhouses in nome alaska that goes too far and i'm not asking you to find it either there are loads of places where it's not defined i'm asking you to tell me what is in this record that suggests that this is within the secretary's discretion and not outside of it first of all of your pointed to page fifty at it is with the modifications to be compatible with the existing use of the land if you're running if you're operating a tree operation cutting down and thinning trees is part of what you do and it's not as if this would have to be done overnight well the problem with that is once you have the designation you need probably federal permits to do things like logging companies typically do and if you are asking for a federal permit the whole point of the designation is you have to go for it through a fairly elaborate process and you might not get it at the end where you won't have to go through the elaborate process and you probably get one if you weren't designated well as far as logging is concerned that the ongoing lobby logging operations here are not required any any federal permit and it's only if the landowner wanted to transform the land and use it for development within the us i don't know if you want to do right yes but but if that's true then it a section seven perm excuse me for a for a permit would be required if they were going to fill wetlands or four fill the ponds but if development happened without the need for a federal permit section seven does not impose any limitation at all it's only if there is federal involvement but here we're talking about the the basic qualification of the land to be designated in the first place and mr nadler in your brief you give a meaning to habitat which frankly is very different than it's stiction area mean pages twenty seven to twenty eight you argue that habitat can include some areas where a species does not live and cannot ever live even with restoration that's very different than what you started your argument with today it's very different than what you've done with the santa ana sucker for example if we disagree with you where does that leave you in this case if you disagree about the santa ana of soccer that i'm not we're not looking at the ok let's assume i take the dictionary definition of habitat which is the kind of place that is natural for the life and growth of an animal or plant at its fairly simple natural place could this is this a natural place for this frog to live and if not do is the difference between you and your colleague whether some reasonable restoration can be made or not that may in the end be the difference but but i think it's important when you're talking about the definition that you quoted and we quote a number of them on page thirty three of our brief a number of dictionary definitions is that the kind of place is that the kind of site on which the which the species could thrive and here the kind of site i think is really most commonly understood month well the the adult frogs are but but the the larva and tadpoles remain in the in the pond for much longer in fact one of the one of the reasons that this is rendered so rare is that you have to have  the there is some evidence in the record that we point to where the scientists evaluated the land and found some stumps and there was as was pointed out there were frogs for located on this up until nine hundred sixty five years from there was a tree farm going on but one of the reasons that this hasn't been further developed because this really wasn't the the album then of the administrative dispute whether any frog could survive there  and and that's why that that's why it's not you know there isn't more express findings of hops out there that are the frogs in the new femoral ponds and those are there and there's evidence in the record that there are some stumps but what about the the ground cover and the trees is there anything in the record that shows that that could show that the frogs there could be a sustaining population of frogs they are without changes in the tree cover and therefore changes in the ground cover for a long term sustaining population there would have to be changes now that we have knowledge that and that is what is said here  might have to sustain themselves they might live for several generations i mean i don't know but i don't think that's the central point i think of i think the fact that frogs were identified there up until one nine hundred sixty five and prescribe back to justice alito is question justice alito suggested that there were other things that the government is capable of doing to conserve these frogs so what consistent with mr bishop's view of the statute could the government do as the government enable it to do that would effectively conserve these frogs is there anything it does have the authority there is a grant program under section six of the act of grants to states now that w h the grants to the state this the state would have to decide to become involved and those can involve private conservation groups the federal government could purchase the land if for example if the land  willing to sell it so far there hasn't been any indication they would be in the service understandably very rarely exercises the power of eminent domain it probably would have the power to do so but that that none of that none of that undercuts the need for the statutory obligation to designate critical habitat and this this statute presumes that the designation of critical habitat is often almost always going to be on private land isn't that correct petitioner would place on the designation of critical habitat would also apply to the government's own land and in terms of limiting the section seven consultation process if somebody wants a permit on on federal land can't you do what you want on federal land well but triggering section yes to an extent but section seven it's a framework to bring in the fish and wildlife service and its expertise and  the only benefit to the federal government is that the fish and wildlife service will sit down at the table with whoever else whatever other government agency owns the land well that is an important benefit that's not the only benefit there's a benefit to the public and how and having section seven scrutiny in consultation go on before an action agency understand something somebody in the federal government can say to the federal wildlife service i want you to sit down with whoever it is the army corps of engineers right now you don't need a statute to bring that about well it's true they could certain section seven he has say organ organizes that by setting up a consultation process such that the action here since you can't go can't go forward in an area that might harm the species or its habitat without consulting with the agency that is a very it passed a statute that said that the secretary could designate critical habitat regardless whether that habitat was on private or public land and then the question is where does this requirement of immediacy come from that mr bishop wants to impose you mean immediate restoration you know that has to be that it has to even available to support the species exactly now without any further effort it is not in the act at all and the whole concept of conservation is a long term prospect not something that has to happen immediately or that so land is around for a long time we hope the frogs will be too you're looking out into the future is there anything you want to add in words that i would write if i were writing this opinion it would distinguish the case the chief justice first brought up where the only way to save these frogs in addition to the ponds is to build special hot houses in nome alaska and the decision resting on that i would strike me as far fetched from a situation where all you have to do in addition is drain six inches of swamp if this isn't a restaurant that even if the owner said i'll never do it i would say it was a reasonable decision ok that's highly subjective are there any words that you could use that would distinguish those two in well this is the greenhouse example is not is not restoring habitat i don't i don't think a greenhouse when you see what no no no you're right yes no it's very unlikely but but here here are the restoration efforts are entirely in sync with the use of the land i mean there are uplands with trees that as i say they could be thinned it's not as if the not only does the conservation not have to happen immediately but the buffalo restoration does you know that's your that's your requirement for the restoration has  n the hypothetical is it seems to me that if you permit the designation of something as critical habitat that cannot be occupied by the animal because you think they can do something down the road that will cure the problem whether it's cut the trees or do anything else that you want to be able to articulate what the limit is and what you require down the road i think it's whether or whether it is a further modification of the habitat and its existing and its existing state and at least where the at least where the the habitat is being used in a way that is similar to what would be necessary for its restoration or would the restoration undermine the fundamental nature of it and if that's so if you get is whoever it was the asphalt thing is what you have to do is just dig up the asphalt that the use of the area for a parking lot is not in tune with its normal whatever so you couldn't do that under this  well i think it i think there may be several factors the size the effort involved i mean if it's a one road that may not be an obstacle if i could just point out there is a there is a statutory place to look for the distinction that i'm drawing and among others it's and fifteen thirty three a one which in designating or excuse me listing a species that directs the secretary to take to determine whether a species may be endangered because of a number of factors the first one is quote the present or threatened destruction modification or can tell much of its habitat or range the reference to modification of habitat suggests that even with modification it's still habitat even though it's been modified and one of the reasons that land is an occupied by a species is often precisely because of what has  happened people using the land in a way or transforming the land but this this passage contrasts destruction of the habitat which would be the case if there was a parking lot or a building or some something that transformed it a modification of the there for a very long time they were there during the timber cutting but they left they left or they were destroyed so what is it about the natural the native environment that still exists there and what is it that you think with very little reasonable effort you could change to make it sustaining for a long period of time to get what  frog needs is the p c s i know well yes but it but it that that transformation that change that restoration would not have to happen overnight it would not mean clear cutting the the and planning and planning long leaf pines that's my point and there are as an example in the in the recovery plan that is cited in the record when it's describing what has happened  pond which is the place in mississippi the only place where there is a stable population at all it describes that there has been some habitat management which has included thinning trees and planting long leaf trees and leave stumps there for the frog it could be a gradual process that doesn't require that it be instantly made made available it's still the case that that would require consent of the owners and they say they're not going to do  this species is going to be conserved in fact of the species it's going to survive at all and not be extinct it is essential to use these ponds it may be that of that the landowner can ignore that but it does serve to identify proposed regulation as as i read it in fact that it a done of it it says while the landowners intentions can be taken into account it's sort of a sliding scale and the more critical they a particular area is for the for the  species the less likely it is that the intentions of the land owner would be taken into account i think that exactly describes this case this is a rare case because of the rare nature of these ponds it is critical to preserve these  habitat and therefore couldn't be designated as critical of a tatt could the secretary take other actions to identify this land as critical to the survival of the species even if it isn't currently habitat is there anything in section seven or elsewhere in the statute of bridget that way i read the statute says that you know secretary has to take actions to avoid jeopardizing the continued existence of any endangered species or result in the destruction of habitat critical habit e concept of habitat has never been a technical term or a technical feature and why this if you could just answer my question has a great that was there anything that prohibits the second maybe on an ad hoc basis but but but not it's not under the statute in the question is what are the response of my question is why isn't it under the statute given that language that says pacifically to the agency can take cognizance of the continued existence of any in danger threatened species quite apart from preserving its threatened habitat seems to me there are two duties that the secretary is there and what this would fit neatly under at least one of them if not the second but the secretary could but the but the designation of critical habitat as i said it's mandatory under the act it has and it has important functions including identifying the area where action should be taken because of the likelihood here that the frog will need that space to survive i say again i suppose the secretary could do something on an costs this is an elaborate process and what the secretary should do to protect the land what other agencies should do to protect the land body part of that process he does lots of things to protect species endangered species beyond protecting their habitat doesn't it yeah so if there is federal land involved other federal agencies could do it but the secretary would have no independent authority with respect to private land except the designation of critical habitat thank you coun critical habitat is just one part but that's only if it's designated critic no no no that is a general obligation i can tell you that whenever you go for a clean water act permit doesn't have to be no critical habitat need be involved state wildlife agencies n f ws immediately gets involved and has to sign off on those critical habitat does not have to be involved and there's a perfect example in this case if you read the final days of nation here the property is in mississippi were  restored before there was any critical habitat designation and c b d in its brief says that in doing so the frog survived the mississippi through quote intense human effort and extensive habitat restoration that was all done before the critical habitat designation in this case so the so and just to understand here and to respond to this changes in sync argument the mr need made there is nothing in sync about creating a an open savannah on our property this is an intensive fifteen hundred acre tree from the trees planted ten to twelve feet apart there is no ground cover because the sunlight does not really reach the forest floor and we don't want to to because that interferes with tending to the trees it interferes with harvesting them this is not a property on which there will be any ground supply moisture or food or cover for these frogs it would have to totally change the way that this land operates in order to accommodate a frog and the idea that the proc scientists here agree with the government is simply wrong a hove says that aggressive and proactive management of the op plans will be critical to the survival of the frog the most important management tool being so far to prevent this from being unsuitable habitat the scientists all have the same point of view but this land could be restored through extensive effort to up land frog habitat not one of them said that this is currently habitat on what this probe on which this frog can can survive  the immediacy here justice kagan comes from the statutory language it comes from the word habitat in section four it comes from the limitation in three five see that the maximum extent  critical habitat is ignition is land that can be occupied it comes from the list in three three where you would it certainly have anticipated that if congress thought that land had to be restored or totally remade in order to be habitat for the program it would stand that rather than using wood maintenance maintenance is a word that naturally refers to maintaining what you already have there and improving it not to completely changing it and in addition  addition to the powers that are already talked about of the federal agencies having to protect these creatures quite apart from critical habitat designation there are all sorts of powers operated through the states and the push is power in section five that allow protection this is not a choice between the products of diving and and not surviving if it doesn't have this critical habitat there are plenty of ways for the government to ensure as it should that the frogs about i'm so i'm sorry i think i read that if these ponds are not designated that there are no other ponds in the united states so to the extent that these ponds are not designated critical habitat and don't survive this front won't if there's a drought or other conditions mississippi first of all there are other ways to acquire these ponds not one person has talked from the government or from any of  process goes on where they talk to the owners and you come to an accommodation that's what generally happens could i answer that question to you briefly you know the government has made absolutely clear it thinks that means are at it it meets but it's the most likely outcome here if we need to apply for permits is that we get to use forty percent of the land for development and we have to turn sixty percent of it over for frog habitat we don't think of that is an appropriate use of all and given this is not habitat to begin with thank you thank you council the case is submitted