will cause a walrus in two thousand and eleven the service found species wars and protections under the endangered species act the service reiterated that finding every year for the next five years then in two thousand and seventeen will see as hitting existence this decision is based neither in the record nor along i'd like to spend my time here on two points the st is that when the service reversed their two thousand and eleven determination that the species warranted protection the service violated the administrative procedure act and the basic central tenet of administrative law when they failed to provide an explanation for their change of position a nd is that at the crux of the agency's argument me focus on your arguments for a nd because a i did they're slightly different yes the st argument is sort of a fox television argument cait argument which is that the service has changed its position but that the relatively short decision documented dozens of fishing league give the reasons so that we could conduct judicial review and figure out why the nd argument is even if they had sufficiently explained you think the result is arbitrary and capricious because it's not it doesn't match up to the best available science is that a fair that this service in switching its position just didn't provide a sufficient explanation under which a court could take a look and figure out why yes that's one of the factors in the fox television test another and so i think that pretty good job of doing what i think the agency should have done which was go through the record and piece together the things that might explain its decision and i'm not sure that if we were to get to the nd question we should all just remain to the agency elite in that case to explain why it thinks the adap adaptations and the and the various things that may have changed since two thousand and eleven lead to the conclusion that the that the walrus is no longer threatened so what i was resisting was your notion that if we got to the nd question we would just find the we would just say this is  argument that i want to ask you about before we got to deep into this you make a procedural argument that says the decision document kid to incorporate by reference well some other document i want to get to explain that argument to make a recommendation about whether the walrus should remain listed or not we've gone through a bunch of things wait a bunch of things where the group of experts and we recommend that you delisted and then the agency said for the reasons in that document but that's why i asked the question say safe that's not this case but i'm worried about the the limits of your position of being able to incorporated either decision document in the final decision in our previous analysis because we just look at this and we were crazy to estimate a century out we have no idea what's going to happen over the next century so we're going to limit it to fifty years would that be independently arbitrary  understanding that correct they would change their foreseeable future twenty six year that's the only change from the previous decision they just changed their foreseeable future from i guess was a century it was a two thousand one hundred dollars roughly to and seventeen that the statutory definition of a species in danger of extinction now or in the forseeable future where is it is it about is it about that if this were the initial decision about whether the pacific walrus should be listed as threatened i think you're out your statement would be accurate but your agency found that they were should be listed as threatened continue that listing for a period of time and then shifted direction so it's not just about whether or not you could've rationally made that decision but whether you sufficiently explained your change of position and for me that's that's the centerpiece of this case so i don't doubt for these purposes of argument that if you are approaching this to novo the agency could have sufficiently explained it said why we've chosen not to list the pacific walrus at this time but can you focus on the st point we've got and here's let me just tell you my concern we've got a three page decision document if you will that incorporates another document that really doesn't make a decision and sort of says well some things have gotten better some things got worse we've been here agency you do it with do with it what you will and all of that three pages really only one page is devoted to the change i mean the oath part of it's about the foreseeable future and whether the way i read it it says well some things have gotten better some things haven't grown certain about some things and so we're taking it off the list and i'm not sure how i can review that decision so help me help me understand why that decision document is sufficient for us to conduct a b a review i think your honor because what the decision document how it weighed those factors what seems to have gotten better if you will is this notion that there's less funding and we thought there might be and we think they might adapt to land on the other hand you've got the fear that once they're on the way and they're going to be easier for hunters to find you've got to continue to ice flow issue which you don't say has gotten better probably got worse because we have more climate change information than we did back then and you've got the information that their prey is more distant although there's some information that they may be able to travel longer distances than you thought and what i can tell from all that is how you how do you put all those facts in the mix and said well that means they're no longer a threat so tell me tell me how i can look at this document and figure out from from a reference to various facts  and let me pose the question somewhat differently because i said this to your friend i think judge gleason did a great job of putting together a decision document she went through the records she took stuff out of it she explained how i rationally lead to a conclusion and i think you're doing a great job i'm just say telling me how a decision document might have been structured but focus of this document how can i look at this document and get  from it there's lots of stuff in the record that might have led to the kind of document you're describing but i'm not sure this document he says description will tell me why it does well for example you're talking about the st the ability issue if we look at the because you changed position or because it was reason to focus on this document or one page of tell me why you've changed your position not foreseeable future tell me where i can find the explanation supports the conclusion that the walrus is no longer threatened because you had once previously made a decision that it was and our case was seems to say is we were discussing with your friend that you can roll i don't have certainty but you have to explain why it supports your position so why does the uncertainty support the change in position here because you were uncertain about is the fact that we're seeing adaptive not an open question of well we're uncertain about whether or not there will be some adoption we're actually seeing and these are not sort of you know large scale genetic changes but we're seeing behavioral adaptation of the largest thing environment i don't like the fact that the good thing that's what we want to eat coming out of you know these reactions want to get back to what judge corker was asking you about this is a this is obviously not a complete summary but at least in two thousand and eleven you said you were worried about the ice floes disappearing and therefore the literature it does not really wrestle with the question of what has changed in the science of arctic sea ice loss or how the water response doesn't change that would warrant a completely different listing of what the service here points to the defendant change that what the behavior modification that the service points do are not necessarily a good thing those are exactly the behaviors that this court warranted listing in two you let me go we thank both sides for their actual briefing and arguments in this case in this case will be submitted