concluding your argument unless you're entering a question from the court also we appreciate your giving us record citations when those are appropriate because you have not read the entire record normally  morning it please the court ron walters of the texas public policy foundation on behalf of the appellant general land office of the state of texas your honor this case does not ask the court to override the any scientific terminations of within the agency's expertise instead it s is cortex size its expertise in interpret statutes and regulations that the agency was required to comply with when it connections between the facts and actions taken by relying overwhelmingly on threats to warble or habitat when it has refused to comply with its duty to designate critical habitat for almost three decades  standards the court could also deal with relief for jailers additional claims that were dismissed by the trial court earlier in the proceedings on the original listings compliance with  its failure to designate critical habitat at the listing phase by ordering the agency to fulfil those duties in any twelve month review what would be it looks to me a agency is required if it lists a species it's required to understand all that but what would be the practical outcome of that in other words no further development west of boston well  agency could make thing be careful of what you ask for well we understand that your honor but the the agency could make a not prudent determination which is the only full escape valve from the duty today as they could  but it has never found that so the the current state of the habitat determination is from the original listing which found that it was not currently determinable which which bought the n c some time but it it was re yes couple years around it but the but the a n c still did not comply with that and has not revisited any of these issues in the meantime the services petition review regulations  defined substantial information required to find a petition to pass the ninety day stage to be that amount of information that would lead a reasonable person to believe that the measure propose in the petition may be warranted so there's a lot of of cautionary language in that standard it's not whether it whether the substantial information is convinces the agency that it should be granted that the petition action should be granted it's whether a reasonable person objective standard could believe that the measure proposed the position may be warranted so it's a it's a low standard and advance to a twelve month review on the merits and at the ninety day level the as long as there is no concern expressed by the agency as to the the basic scientific validity of the studies the information relied on in the petition then the agency at that ninety day stage is not to use other studies to pick apart the studies in the petition that as long as there is substantial information indicating that reasonable person could believe that it would be warranted to grant a petition then then the the petition should be advanced to the twelve month stage just go very briefly  over the substantial information that you provided yes your honor the primary information was attached to the petition it was a two thousand and fifteen texas and them survey of the relevant literature since the work was listing in one thousand nine hundred and ninety on habitat and population of the world were given new methodology that has occurred in new methods of estimating warbler habitat and population  the studies of the last decade show that much larger numbers of population and habitat than originally believed and those numbers alone especially because habitat threats are by far the most prominent concern in in the the reason that though the warble remains listed in this list in the st place even the other factors of the five factors that the agenc consider in determining whether a species is endangered even the other factors other than habitat all at root come down to habitat concerns predation was alleged to be exacerbated by the fragmentation of habitat of the warbler obviously issues like the reasonable alternative regulatory measures are also discussed in relation to habitat and given the much larger could be from one acre or two heck to yours to ten so what are your numbers on those well the the the warbler recovery plan  had estimated that eight different territories would have to have three thousand dollars workers apiece so that's a total of twenty four thousand dollars now the studies show over two hundred thousand there are several studies that estimate over two hundred thousand warblers now those are not necessarily within those particular territories broken up like like the recovery plan but they do indicate a much larger volume of warblers than was petition according to whether it described based on available information past and present numbers of the species and any threat space by the species and with respect to the what we petition that's exactly what the petition is did the most recent in fact the the agency itself said that the texas a and m survey did represent the most up to date status of the scientific literature on  they weren't estimating the warbler accurately earlier in the service admitted that the population estimates are very difficult to determine but it used this uncertainty to to require a higher level of of information than is required because the regulations say of failed the information and if if these are the best studies they're available to you can't just do a census of the warbler because of the nature of its habitat and its its practices then this  violates the services own regulations and the western district of texas judge a call in a recent case earlier this year with involving the bone cave harvestman another central texas exclusive species didn't they denied a ninety day petition to delist based on new population and habitat numbers very similar to what's going on here with the warbler i detect this to be fair i think there is a possible distinction in the cases because in that case judge eckels said that the service was merely was trying to place a burden on the petitioner to quantify or give substance to some theory or estimate that even the service itself admitted was not quantifiable yes you're right but i believe that is what what happened in this case as well because the service has said that it is self reliant in its five you review on that the studies that were referenced in the two thousand and fifteen texas a and m survey and they said that that is the best currently available information and given that the any uncertainty is to be resolved in favor of advancing to the full twelve month review where all the relevant information in any relevant stakeholders with with relevant information would be able to to examine the studies more critically alleged five year review well there was a new interpretation of data which is permitted by the regulations so that new interpretations of data is also a legitimate reason to make a listing revision as well and it please the court lisa bennett representing the state of texas says amec is carrying the state's interest here is ensuring that the service adheres to the process that congress put in place and that process is just like a balance between various public interests including an interest in obtaining judicial review of fish and wildlife service determinations because we just left off with the five year review i'd like to go ahead and start there and as i believe that's one of the core problems with the ninety day review so the previous five year review that the service used as the baseline for its review here was a non reviewable non final agency action and it cannot control the outcome of the petition process and the  county case that that cited in our briefs it was a night circuit case ran through this basically someone tried to seek review judicial review of a determination that had been made in a five year review and in that case and the court said we don't have jurisdiction to do that this is not a substitute for the interested party petition process and if you want to mount a challenge about the species status following five year review the way you do it is you file a new citizen petition another case the american forest researched resource council case clarified that the result of that future role making is not determined by the five year review there could be the opportunity to correct errors or to gather additional information so here both the agency and also the district court made a number of kind of disparaging comments about you know this information not being sufficiently new since that that last for view that the agency can't be permitted to make all of its determinations that are going to form a baseline in non judicially reviewable determinations and then reject future citizen petitions which is the avenue to get you you on the basis of those non reviewable to the determinations so that that's one of the two core problems with the process that the agency employed here the other which has already been touched upon is simply that the  the agency applied the wrong evidence area standard for this threshold stage and while we don't have presidential opinions here we do have a wealth of district court opinions from around the country that uniformly use terms like this is not an onerous proceeding it's not overly burdensome this is meant to be a threshold stage where the service only asks if a reasonable person may think that the species should either be listed or delisted on the basis of that information why do you think it is a dearth of circuit court precedent i can't speak to that exactly but i would i would guess it simply because of the fact  nature of most of these determinations it's sort of a question of you know what was presented in one in that particular petition and also in many of these cases the vast majority of them the courts did vacate the ninety day determinations and remand back to the agency either with instructions to proceed to the twelve month review or to simply revisit their ninety day finding so in those cases it would be back in the hands of agency and and going forward there would be no reason to most of those cases arise in the context of petitions to list or petitions to be lists there are both but most of them were petitions to list and that's that's a really important point about what we're asking here is this process is balancing interests that apply equally for petitions to list or d list apply with any species and regardless of any preferred policy position so what the state is asking is simply for that process that congress laid out to be adhered to and there is case law that we cite in our in our briefs that confirms these these processes that are laid out are not mere bureaucratic hoops to be jumped through they are the processes that determine when a judicial review can be sought for example with a ninety day review there's judicial review only a negative determination same with twelve reviews so if the service determines that a twelve month review of a position that it thinks listing should be warranted only then does it go forward with notice and comment rule making where were everyone can comment so there are specific places where we can get judicial review and that twelve months of negative determination or listing determination that's the place to hash out the merits of whether whether the you know the studies lean one way or lean the my name is a one million y'all on behalf of federal law poli it's we ask the court to affirm the district court's judgment i'd like to start this morning with the services negative ninety day finding and then i'll address the time part claims st i would like to talk about how the general land office is challenge to the ninety day finding is governed by the from mill your arbitrary and capricious standard of review and the issue here is whether the service rationally believes that the information in the petition would not lead a reasonable person to believe that delisting may be warranted the issue is not as my friends on the other side would like for the court to independently conclude that the information in the petition question and that is not before this court everyone agrees that the proper ninety day standard is the substantial information standard which is defined in the services regulation has information that would lead a reasonable person to believe that the petition action may be warranted well let me ask you just a commonsense order at least from my perspective question if it turns out that there are two hundred thousand adult bullish spread over not one or two but eight different possible reading territories just exactly why why does that make your ninety day decision less try to phrase it right correct that this is not substantial information and i realize you focus on habitat but my goodness that sounds like a lot of birds to me of course your honor so at the ninety day finding staged service can take either to tax it can and credit the scientific information what's presented in the petition and say that that scientific information does not rise to the level of stand texas a and m one of the primera culture i mean seriously don't don't laugh at me and i know you're not trying to be  in provider or anything but i mean that seems pretty substantial to me so what's the what's the basis on which you say that not sure your honor i'm sorry and i know that's ok i didn't need to rattle what's the basis for that not being central to the service provided two reasons for its position that even assume mean the word large population is larger than the service originally estimated at the time of the listing it's still not serious danger of fragmentation from the urban development in the small portion of texas where warbler habitat is so for those two reasons the service found that even assuming that the population studies from the primary reason not the district court in that case concluded that the service had required the petitioner to present population studies of the service itself and meant it was not scientifically possible i'm here  service to say it that the petition should be denied because the science was a bailable or the science wasn't possible it agreed that the population studies were the most comprehensive and best science to date in just  population studies themselves do not rise to the level of substantial evidence because again they did not indicate recovery they did not indicate that the word lower was growing and also they didn't i take into consideration the significant threats to the world leaders habitat so there's not an issue as to whether the original population studies because they were built on a different and outdated methodology might have been roll your own or if you look at  on tries to level a substantial information again because they do not indicate that the species is recovering they simply indicate what i'm looking at that we're covering and s is there not an issue here as to whether the ninety nine he listing based on and perhaps outdated methodology understated the population do we know is that other certainty with the world population that there maybe was not considered by the service at the ninety day a fine stage well but again if they had raised to use a question but that would lead a the service house to consider the information presented by the petition including these higher asked him it's a population but again just because the population numbers are higher than estimate it doesn't necessarily mean pretty great her scientific inquiry i would suppose and then a notice and comment period which is pretty essential and be she's regulation it seems to me because the potential effect on that even assuming that all the studies in the petition are valid they don't rise to the level of substantial information that i need a standard it is a low bar but it's still a threshold on the petition bears the burden of presenting the substantial and necessary scientific inquiry information that i need a standard plays an important role in the services management of its resources the services inundated with petitions  two grounds st of all counsel for the state of texas says in her view the vast majority of these ninety day challenges have resulted in remained you know just looking at the case law which i have not had a full opportunity to do yet number one and number two the regulation has just changed to set a hot say that the petition must be considered by the service in the context of all prior agency actions relating to the species and in the context of final agency actions thoughts when the petition would need to produce new information otherwise it would be denied but in this situation as the state of texas points out there is not a final agency action and issue the two thousand and fourteen review was not a final agency action therefore even under the new regulations the service would as it did here consider the position i'm in the context of the two thousand and fourteen review oh ok why did why did sorry fish wildlife promulgated that service isn't titled under the old regulation and under the new regulation to consider are all of the information within its files as well as its scientific expertise indeed it would be arbitrary i'm for the service not to consider information within its own files and then one other thing you have in answer to my other question do you have an impression about whether the majority of the ninety day process are presorted in recovery regions meets this three thousand threshold so what that means is not all of the workers are a bunch she in different recovery regions but not all eight recovery regions has a big cities and little cit  services never bothered to designate a critical habitat now and you need to explain to me why that fact should factor into the significance that we had touched a substantial information because dan that one you know in other words once the warbler is just united as as endangered then it can't be taken but if there's not a critical habitat what does that mean to the developers for instance who have been steadily moving into west austin or wherever yes your honor so critical habits how does a nation in fact that's the reason why the state of texas has repeatedly asked the service not to designate critical habitat and it is our understanding that texas still does not wish for this service or does it  well but of since there is a prohibition on taking warblers and the and the prohibition of taking is six includes habitat th does the current without a designation of critical habitat does this mean the you know the residential developer can't cut down juniper trees if if the developer would honor i just have a few points in rebuttal one on the issue of using information in the services files what it is true that the service is not required to just look at the face of the petition that is allowed to to look in the information in in its files but that's only for background information the kick the case law does not allow the service that that that that statement that information their files can be s the information in the petition meet the minimum scientific viability which no one questions the text in them studies basic scientific viability then you have to accept that that information so for example in the humane society versus pretty good says if conflicting scientific evidence then at the ninety day stage then a reasonable person might conclude that a twelve month review was warranted and said for for biological diversity versus kempthorne the northern district of california case it says the ethernet of a stage where there is disagreement among reasonable scientists the service should proceed to a twelve month review another point is that  the service states the general a p a standards of reviewing it cx is that you know as long as you can articulate a rational basis for its actions that only applies if that can't apply to overcome a specific lower more more demanding standard of the agency set forth by congress and by its own regulations so in this case because of the very low evidence on all sides from all interested parties anyone who has anything of value to contribute to this discussion to go see the the actual process to determine on the merits whether the warbler should be de listed or whether it should remain listed