twenty ten because it faced immediate and significant threats to its rare habitat from oil and gas development ranching and herbicide use in twenty twelve the service denied the rare those are federal protection based fundamentally on the secretive  unforeseeable texas plan that was cobbled together at the last minute the service is own policy sets an extraordinarily high bar for evaluating voluntary conservation efforts under the policy on the evaluation of conservation efforts or peace as it is sometimes called an effort must be highly certain to be implemented an effective policy states that the service needs to be certain that the effort improves the status of the species at the time it makes a listing determination to that end the service must demonstrate that the efforts will be carried out when they will be carried out and whether they will be effective in eliminating threats to the species last minute agreements generally should not affect the listing decision even if it's a good one i'm sorry r l yes evil is that if it's a good one if they can show that it's highly likely g o p sir that's my point yes then events last minute doesn't get too far yeah i mean that's we haven't challenge the peace policy directly they can take into account one that actually eliminates threats to the lizard of us this one does not in our brief highlights many reasons why but today i'd like to focus on a couple of reasons why the texas plan is unlike any other conservation agreement the service has evaluated before since first it was a rational for the service to conclude that enrollment would continue to increase after the incentive of threat of listening was removed sat in the texas plans unprecedented secrecy provisions undermine any claim that it is certain to be implemented ineffective and third based on the policy itself and the amount of how tight that was and rolled at the time the decision it is clear that habitat loss and fragmentation is still likely to occur if there is no meaningful cap on habitat loss and fragmentation that will save lives or the services completely in the dark on who has unrolled what kinds of lands have been rolled and the terms and conditions of enrollment the plan lacks meaningful curbs on development and the service cannot directly monitor or enforce it most of all participants can drop out at any time the plan represents the kind of future speculative efforts that numerous courts and the services own policy reject fact the preamble warns against this very situation where a last minute uncertain agreement is relied upon to effect a listing as for whether this plan was not certain to be highly certain to be implemented it was a rational wishful thinking on the part of the service when in rome it would continue to increase after listing was removed it was inevitable based on this record that enrollment would god go down in fact it has the threat of listing is no longer meaningful after withdrawal decision has lef proposed rule new notice and comment and it said he wouldn't take place in the ordinary course of events in a short enough period of time meanwhile with insufficient number of participants in this plan there's a competitive advantage to actually not comply with it because some operators are not involved in the plan and those that are maybe at some sort of a disadvantage so again it's just not reasonable to think that given the way the service that a relisting with a rule making notice and comment all that entails and emergency relistening cuts out a lot of that time doesn't it cuts out all the time missionary the service then has two hundred forty days to repose listing and go through another process but it does have was in its authority the ability to list the species right away if you know it's not doing that and even though we know that the plan is failing so there's no i have no reason to believe that the service is going to list a lizard in or is it defined in another way well i think maybe the best way to explain that in the jail at seven o one there is a map that looks something like this and the one in your in the j is not in color but i'm happy to provide it in color or with wide but this shows the extent of texas habitat and as you can see it's extremely fragmented it's color coded based on  an overlay of where they have found lizards on top of more an assessment of the general habitat quality of the service talks about poly gongs this is what is talking about these little bl on the map and within that the service does not know and cannot know under the secrecy provisions of the texas plan exactly where have a tapestry been says occurring and whether the habitat  i'm supposed to file this report what am i filing a report on in terms of this complex and i'm looking at the whole state of texas what am i looking well i'm actually not entirely sure so i like to be friendly yes this is the government so they can be prepared to tell me how to how to understand what the reporting requirement entails but what i do know within it within these these circles have the state i mean what are we talking about well you know what so this is a county with another county that's another county so you know what they were really talking about about actual individual vegetation within these within ice malice the government ok the one percent cap and only factor so the one percent cap we have a core disagreement both with the goal and also with the certainty that it will be achieved as for the goal and it's really a ten percent cap over the last over the course of the plan that was designed according to the texas plan a j four ninety three it was designed to facilitate uninterrupted development in the permian basin it locks into place expected habitat loss based on a projection of the amount of oil and gas development that was that the service believed would occur he was not in the service never made a determination that that was the exact amount of habitat loss on top of the eighty plus percent of habitat already lost that the lizard can sustain going forward essentially th  locks in existing trends in the service never explains why that is correct but our biggest concern aside from that scientific point is that it can't be met in any event because at the time this issue was made more than thirty percent of texas habitat was  never rolled in the first place so it's mathematically impossible for the service to state that one percent loss of habitat in three years or ten percent over thirty years will be achieved landowners can quit at any time and some have service never said what level of n roll list and in fact did list last year so there's a lot more incentives for people to stay in the new mexico plan to cover more than one species it also direct the people who sign up for that plan as divots of inclusion directly so there you are out of lizard habitat that's the promise you're making they can still drop out of the new mexico plan but there's a lot less reason to do so so the service didn't in our view have and i think some of some of the scientists in the record actually indicated that once the threat of listing went away  texas there was no incentive staff also indicated that of the most high value habitat some ninety to one hundred percent of it should have been enrolled at the time of listing and it wasn't so our concern is  that the the cap really is a loser e and that because of that because there are so many questions about it under the services own standard it could not have been highly certain to be effective given that ongoing and future habitat loss and fragment remained a fresh from the service doesn't even know how much have attacked have you lost without impacting on the species so part of the response as i understand it is that the focus of the plan is on  mitigation so that if there is destruction about one percent in the three years and ten percent over the thirty years that will be either avoided and if not avoided mitigated and that you end up with a basic core happen habitat that is preserved well the plan actually requires that ther make it term a nation about whether it's economically feasible to do so they're not actually required to steer out of lizard habitat and they're not actually required to show that there's been any positive benefit to the lizard prior to engaging in any type of habitat destruction i'm into my rebuttal time now if you don't let me just on yes then i know you talk about prior to destruction but if there is destruction i thought the the controllers will may know but it's up to the service at the end of the day to determine whether this plan is working in the middle of the getting aggregate reports it has no idea what's actually taking place on the landscape i understand you don't like the delegation here but i just w understand how it works as i understand the comptroller is going to know the details of each enrollee certificate or the inclusion the controller has the details of the significant of inclusion that is correct so the controller will know what's going on but the search of a gets of inclusion at least the one or two that they really revealed indicate that there is nothing binding on the landowners the controller may know what's going on and what has been done by the end of the day will only report to the service that the amount of destruction that has taken place and whether there's been any mitigation without any real analysis of whether there's been any positive biological effect or what impact that's had on those or how do you know the latter well we have got to look at the reports that have been filed but they're not detailed let me ask you something in tell me why i'm wrong and i may be wrong keeping in mind that the endangered species act says that an endangered species becomes so if it's in if it's in danger of extinction throughout all or a significant portion now my understanding is most of these lives are in new mexico and most of the territory of new mexico fifty four percent of it at the time of the withdraw was being managed by the bureau of land management so you've got i think i'm i'm not sure with the numbers i thought it was something in seventy percent of these those are in new mexico you original land management plans and found it to be an adequate regulatory mechanism they still spent the entire time of the administrative record on working feverishly with the state of texas to put a plan together they then went ahead and determined at forty four when they concluded that without a texas plan and also in the final decision itself which relies very very heavily throughout the decision on the alleged protections in the texas plan it's a three legged stool so if you find either the texas plan violates the peace then the case should be remanded and on the second hand if you thought it was saying that piece aside if you find that there are still sufficient threats to the lizard under the five factors then again  reasons that we stated in the briefing that we talked about a bit this morning we don't think that it was reasonable for them to assume that enrollment would continue the details of the texas plan itself are highly uncertain large amounts of habitat were not there are benefits from home  r there are there are always benefits to these sorts of plans for the services standard that it set for itself is that it must be highly certain to be implemented effective in the first instance and then when you look at the five factors under the essay you must conclude that either there are no threats to the lizard and therefore no adequate regulatory mechanisms needed or that there are threats and that there is efficiently dealt with it could have also chosen to list the losers threatened instead of endangered or recognizing that continued habitat loss in the foreseeable future could lead to an endangered state on remand if the service wants to go back and try to make the assertion that the texas land is not necessary for the lizard survival it can do that but this record throughout from the proposed rule straight through to the the endangered species act requires official wildlife service to make these types of determinations about whether to list endangered species after taking into account any conservation efforts by a state to protect species and that's through through other conservation practices that's in the statute that section for me one day in that what this case is essentially about is a challenge to the manner which the service undertook that obligation and consider the voluntary efforts of the texas comptroller in the texas conservation plan and i want to emphasize the challenger's is fairly narrow as you you all recognize the amount of habitat in texas for the lizard is of a quarter to a third approximately of the overall habitat for the lizard and the habitat approximately two thirds of the habitat that's in new mexico so if their theory is true that any time a species is determined not to be listed not to be in danger that will remove the incentives for these voluntary conservation plans and the roman will drop that means that the voluntary conservation plans will never matter to a no list decision as essentially they will always require the service to list otherwise that incentive according to their third will not remain but in fact is as rather pointed out there is the possibility of emergency listing there is the possibility that they can reposition and yes the service has been pressed with resources over the years mine are certainly know how to get in line and when he gave him a deadline suit and obtain a favorable settlement that puts the service on  mean at the three year mark the service said it would look at whether the cap has been whether it's been reached and if it if it had not or if it had been it would then evaluate whether additional lands up to ten percent of the habitat over the thirty year life of the plant could be allowed to be disturbed so that's how the cap works there's regular reporting there was for the first three years monthly reporting about a contractor to the service and the details of those reports of the topics are in the texas planet j six two nine it lists the items that are going to be in those reports i'm not sure that any of them are in the record because there are those decisional but the service record the amount of habitat that if any that would be got was disturbed over the prior time period the amount of mitigation undertaken and any in foresman issues and how those were dealt comptroller does have access to all that private data well i'm not sure that's true when you look at the texas statute it reaches state agencies as well as federal agencies so that is a question   geologic do information that are identified from aerial photography so it's not yet what does that mean in practical terms so it's a geologic feature no i understand it but the point is when you look at this ma one information is the service receiving so there are number these i believe i'm not they don't have numbers on them in this map but i believe each of these different and they are colored in a color version colored shapes is a separate habitat barrier based on the geology that's been determined from the aerial photography based on the the vegetation that's there and so those are number of those different shapes are numbered and what's reported by acreage by each what my reporting so you have a list of these different shapes these i've got them right and you've got all the different plan participants who have entered into individual agreements with the comptroller about what activities are going to undertake on their land so looking at this map and i'm the controllers office i'm reporting on andrew's area and my reporting on the ector area all of it so i'm reporting on everything on seven zero one that's my understanding so if i'm a fish and wildlife service what i did because i don't understand this exactly a frat number all right and it says  habitat is down by twenty five percent then what happened so it would look at where that habitat is located and they could determine based on this entire geographic area by point five percent habitat down perhaps i misspoke they have a report on each different shape here you can you can see unfortunately this isn't in  complex number thirteen had point three acres disturb you know who is making up these colors this was came from a scientific paper from two thousand and eleven from a scientific reached researcher hit and it was it was identified based on the likelihood that each of these different habitat areas is going to be occupied by the lizard and they determined that based on the type of plant life that's there they have the plants there and also based on the geology if it was a dune that had the types of they call them blowouts these are road areas on i guess the leeward side of the dune where there's a hollow that the loser you're satisfied that the controller and the fish and wildlife service understand what information is going to be obtained yes i mean this is a regular working relationship that they have or they have these monthly reports they have regular meetings and supposed to be a cooperative adaptive management frame five percent and the fish and wildlife service to the controller you have to do more in this rig area they could i have a huge respect for you have the colors reversed when you see the the map will be the dark green that has a higher likelihood but yes i'm going to cite when i'm talking about is categories of a current very high whatever color that occur so and the fish and wildlife service say to the controller do better so that's part of this reevaluation of the three year mark the idea of the one your cow put up would be the way the metric by which the service could say whether there needed to be something done better or not i think you know one of the points  of my friends made about this recording is that it's not on a parcel by parcel basis ok it's not clear to me what it is on what i'm trying to define yes so these it's based on habitat i know where these trees are where the trees are and the trees have roots cover two hundred miles underground so i know but that's a good happened to have yes and so what they found is that it's a combination of  the trees being above the surface and being on these particular geologic formations these dunes that have these particular i'm with you but i'm just trying to understand the fish and wildlife service as approving this plan the comptroller's office which as i understand it financial office has the responsibility of getting these certificates of inclusion or has it turned it over to texas a and  to do that in texas and am has turned it over to this foundation yeah so it's the foundation that's the working body here i i don't know all the details are you that arrangement is my understanding as  well and so i think they do the reporting and i think i think you're correct that they are doing the on the ground so if this hypothetically if the service stance a report that says habitat in the first three years is down by eleven percent what happened in the first three years it's eleven percent would be exceeding the cap so they would have found out about that presumably well before the three year mark and would have adjusted the plan through the would have sought to modify the terms of the permit to be more strict about what is what texas is allowing to occur so let me be clear i'm the controller and the service has given me a permit revocation or modification proceeding against the controller so that would be a last resort after all the discussions and all that but all that as you know is discussions get nowhere so in the worst case scenario you know that would be the option for the service would be to revoke that permit and what it would do is terminate the assurances that all the landowners get that far but it would be service be able to pinpoint this rigid area in the reporting materials it received and you're telling me yes it would it would be at the at the level of the habitat but not at the level necessarily of the individual landowner i understand that ok but we're talking about the right and you point me to a map that is huge and you cannot tell me how huge or and or small this very high area is i can get your assuring me that or are you that the service will have information as to whether the problem the eleven percent problem is in this very high area or in a very low area believe it docks yes i believe then it's up to the controllers office or this foundation to take some action against whoever it is who signed this a typical of enrollment that's my understanding yes the comptroller has used force and responsibility against the landowner and the servo i own some land and i'm burning milan of course this is destroying the roots say we're not so you with what you're doing and we're going to revoke your certificate of inclusion in the program which means from the state forward you will not receive assurances that if the loser is listed what you're doing on the land will be you'll be not  if i were the comptroller i'd be very leery with that statute on the books but in the rate you are saying that the fish and wildlife service is satisfied that it can get the information it needs and i'm just trying to understand why it is satisfied so it gets the reports by habitat home by that particular dunes that it knows based on the amount of a particular likelihood of blizzard occurring there it knows what acreage is has been disturbed if any in those particular areas and it also knows the overall some of the acreage that's been disturbed over the life of a plant so and so i'm clearing it ten goshi i would the controller to do something about it and if the controller doesn't do anything then the service can revoke the permit correct and the permit is in the record it's  do three and following and that's the enhancement of survival permit you know we haven't talked a whole lot about that but that is premised on this whole plan that was developed by texas so if the plan is not getting implemented in a way that is protective of the lizard and if you're not really worst case scenario if it were doing detriment to the lizard then certainly it would be the fish and wildlife services responsibility under the terms of  often talked about as applying to future conservation plans this is something that was on the ground and and operating at the time the service did make its decision i'm i'm  in the us any unruly if the surface owner doesn't enroll then is the subsurface owner off the hook i think the answer is yes if the surface owner in role is the subsurface owner if i roll that in directly in rolls you i don't know if as a legal matter that's true that's what i'm trying to figure i don't think is a legal matter the in roman of the surface owner as a matter  on roles the mineral estate owner the mineral estate owner is going to have some under state law presumably some reasonable right to access the minerals in a way that doesn't waste the surface and really i think confuses this issue of surface versus mineral estate is we're talking about activities related to the lizards habitat that all occur on the surface it's either going to be mining and the placement of well pads or drilling  all talking about how it impacts the dunes on the surface so if the land is primarily being used for oil and gas leasing at the present time it makes most sense to have the oil and gas operator a complete agreeing to some voluntary terms about where to place the well pads consolidating infrastructure and the like and that's going to be what's most important to the conservation needs of the lizard now is if the fielder when they they come back into possession of that area 's focused on the activity that's most important for the lizard and in many cases that's going to be one or the other but not and could i be cleared to at the time  of approval of the plan or at the time i guess the role of time is the role of the proposed rule to list is the so called core habitat area in texas covered up for habitat area and of the seventy one percent in that core area or elsewhere or we don't know i don't know i  of roughly above well less than half in each state and less than half over on both states is fragmented and so the service look to scientific literature on other similar species misters no best available science on this species for how big of a habitat patch they need and so they looked by analogy to other other species and said that you know back want to be of habitat has enough core areas in it that we're comfortable that you know even if the texas plan only covers seventy percent but there's still enough in both states overall to provide for the lizards needs and for that reason and so back to your response to judge  also the point is that the service is defining the danger in terms of the need to list and if everything's working just fine in new mexico it almost doesn't matter what happens in texas it's difficult to say on this record it would be harmless error if the service had not relied on properly on the texas plan here and what what the statute says is that the service is supposed to take into account the conservation efforts any conservation efforts made by state so that is why it took account of both states conservation efforts here and i'm not aware that there's a finding although i had at the outset of my argument i presented the context i think it's important to keep in mind the context and not only be clear i'm not making a harmless error argument i'm also not saying they couldn't reach the same authority over this texas plan it is now entirely in the hands of the texas contrail or the service can attempt to negotiate changes to the switch if it's of inclusion but the individual landowners don't have to agree to anything they can drop out if they want to conduct habitat modification and we don't even know what they've agreed to do but if we assuming that they don't now agree to do what they said they were going to do they don't have to take any further steps so the only recourse for the service what we are going to have to go through is a listening process which has already taken twenty years to get to a proposal you know it's sort of a colleague want mine put it a sort of a treadmill to hell and then you have to keep going through the same process in the same process until we right so that's i don't know how you can make the statement you just made unless you're asking the court to assume that everybody acted that way we're not assuming that everyone is acting in bad faith but we are saying that there are different types of voluntary agreements there are those that are contractual there are those that are incentive based there are some that could work this particular one does not provide any any high level of certainty to the service that protections are going to be in place especially when more than thirty percent of the habitat was not unrolled at the time of listing and that number has has increased since then the service has no recourse except to go back and start a listing process over again which could take many years and so on this record based upon what the service you know knew at the time the it cannot be to say i don't think it passes the straight face test that this was certain to be implemented and certain to be effective in protecting the lizard well there are two decision points right so the first one is under the peace analysis service is own standard is higher the certain so was it arbitrary and capricious for the service to conclude that these were highly certain and you cite a comment by there are no other views in the record that i am aware of there is repeated statements by staff scientists that indicate high levels of enrollment would be required they repeated statements by multiple people that say the secrecy provisions were a nonstarter and that they don't have adequate and i think it was completely unreasonable of you know for the service including a roman would increase one and in fact you know it hasn't so we are you know when you look then at what the peace requires the services own standards that it set for itself the requirement that there be biological responses there be high levels of certainty it didn't meet that and then when you look at the you know effectiveness again you need to look at the texas plan itself on and it as the discussion this morning has kind of indicated it's really difficult to understand what this plan actually does  for lack of trying over the course of of this litigation and a lot of time spent on this the service only gets total averages within that that map of each of those covered circles of the amount of habitat loss it doesn't really know in great detail in the in the rule to show you know when it's trying to say that there is a lot of habitat or there is some habitat left for the lizard exactly where well pads are it's not going to get that information under this it's only going to get well in the green holly gone you know there's been a one acre of disturbance but we don't know where or how or to what impact it has had on fragmentation so there's just too much that service doesn't know when there are many many other plants that states have developed for other species that that are held to a higher standard if the peace policy means anything and if the endangered species act is to be harmonized section for b one section for e one d and all the factors are to be ready in a way that makes sense in the service needs to be held to the standard that it set for itself that these plans have to mean something and they have to be able to rely on them and if they don't have that high level of certainty then that plan should be rejected and serves if you know for the questions that's my final point thank