please may it please the court my name is rebecca smith and seated at counsel table with me is timothy back till together we represent the appellant's friends the outs won an alliance for the wild rockies we are here today and what is surprisingly a matter of first impression before this court whether the courts have jurisdiction to review a challenge to a recovery plan that is issue under the endangered species act and although a number of district courts have actually  allowed these challenges to recovery plans to go forward for the past two decades this is actually the first time that this jurisdictional question has come before any appellate court and with the recovery plan as a final agency action yes your honor and even before then our position is that it's actually the e s a citizen supervision that provides the court with jurisdiction because under the e s a citizen supervision a challenge to a requirement in section fifteen thirty three that is not discretionary can be brought under the as a citizen supervision and so we can look to guidance on this question to the supreme court's decision and then of the spear in that case the government had argued that the requirement under section four that the secretary shall address economic impacts in a critical habitat rule the government argued that that was also discretionary the supreme court instead said actually shell means shell shell is non discretionary and so a non discretionary duty that the secretary address economic impacts in a critical habitat rule and our position is that that same law applies to this case because the recovery plan is a requirement also under section fifteen thirty three which is also called section four it's section four f and so that's half of the equation bennett because it seems to me that that's the lynchpin of your argument and as i read bit one of the reasons that the court is characterizing the conduct they are as having some finality is that there were some very specific consequences in terms of this immunization from both civil and criminal liability and we don't really have a parallel to that here so it i'm having some trouble as to how you jump from bennett and the unusual circumstances the a recovery plan taking on some life of its own if you will so you're going to there's a kind of tie those together if you will share and there's a couple parts to that response which is that in bennett what the supreme court did is it found one claim to fall under the e s a citizen supervision and then it found a separate claim to fall under the administrative procedure act final agency action and so i think you're asking about the second part of the biological opinion in that case was what the supreme court held was a final agency action subject to review under the administrative procedure act but the reason it found that that didn't fall under the citizen supervision was because that wasn't a requirement from section fifteen thirty three because the biological opinion comes under section seven not section four and our position in this case is that a recovery plan does fall into section four just like the critical habitat determination does so we don't even have to get to the administrative procedure act question but because you asked about that issue i will address that what the supreme court said and then if you spear regarding we don't have to get to it i mean you have you have a citizens who claims and the question of whether we have discretionary or non discretionary issues and then you have the recovery plan itself as to whether it provides independent basis under the administrative procedure act so they are i know you're trying to link them but are they in some respects independent determinations yes your honor and if the court finds that a challenge to recovery plan under section four falls within the citizen supervision it does not need to also find that a challenge falls under the administrative procedure act so that would essentially preclude the necessity of that second determination and so the reason that our position is that this falls under the endangered species act citizen supervision is because in bennett v sphere the supreme court essentially said things fall under the citizen supervision when they are part of section fifteen thirty three and they are nondiscretionary and the reason the supreme court held that the critical habitat the need to include an economic impact analysis in a critical habitat role the reason they found that was nondiscretionary was because the statute uses the word shal so specifically the supreme court said the government seeks to avoid this result by appealing to the limitation in subsection see that the duty sought to be enforced not be discretionary with the secretary but the terms of section fifteen thirty three b two are plainly those of obligation rather than discretion the secretary shall designate critical habitat and make provisions there too on the basis of the best scientific data available and after taking into consideration the economic impact and any other relevant impact that's five twenty us at one seventy two so the court is looking at do they use the word shall and is it under section fifteen thirty three the e s a citizen suit provision excuse me the e s a recovery plan provision also meets those two requirements from bennett v sphere first of all it does fall under section fifteen thirty three we're talking about section fifteen thirty three f here and it does use that mandatory language shall so at section four af and one b it says the secretary in developing and implementing recovery plans shall to the maximum extent practicable incorporate in each plan and then there's a list of things that must be incorporated in our key issue in this case is subsection two little lie which says objective measurable criteria which when met would result in a determination in accordance with the provisions of this section of the species be removed from the list so there is a mandatory provision that a recovery plan include objective measurable criteria which when met would result in delisting in accordance with the provisions of this section this is actually more specific than the critical habitat provision addressed in bennett the spear and your honor this court did address bennett v sphere specifically in the association of california water agencies v evans case and in that case the government made the same argument basically that it makes today only under the a p a because they assert the defendant's duty is discretionary however plaintiff's claims under the e s a fall squarely within section fifteen forty g four and this court went on to say in this defendants had fulfilled that required duty when they applied the so called incremental effects and houses to determine the economic impact so this wasn't a case as the government presents where the agency had failed to include any economic impact whatsoever this was a case where plaintiffs challenge the substance of the economic impact and this court held that that was an e s a citizen supervision and so that's why the sort of procedural versus substantive dichotomy that the government proposes is a false dichotomy these cases say that when the e s a says shall include something then this court has the jurisdiction to review whether the government actually included those provisions whether it's in a critical habitat determination whether it's in a listing or delisting rule or whether it's in a recovery plan these are all section four requirements and the citizen supervision explicitly require section four requirements that use that word shall you walk us through claim one in the complaint under your reading of bennett and explain why we would have jurisdiction over that yes your honor because you would agree that we're limited t coins in the complaint correct yes your honor and i'd like to say that before that list of claims in the in the complaint i would first point the court to paragraph thirty nine which is that you are fifty three to fifty four that is where the law is set out that we are alleging that the government has violated paragraph thirty nine says section four f of the e s a requires the defendants to develop a plan that incorporates and then we list the requirements including objective measurable criteria which when met would result in a determination in accordance with the provisions of the section that the species be removed from this list the paragraph then says as set forth below in the claims for relief the defendants have failed to comply with this legal mandate so specifically claim one which basically says that allowing twenty five percent of the species to go extinct is not consistent with survival and recovery so what we have to look at in the e s a citizen in the excuse me recovery plan provision is not just what the government has sort of paraphrased as having delisting criteria that's not actually all the statute requires it requires objective measurable criteria that when met would result in delisting under this section and so delisting under this section means there's five delisting factors that have to be addressed and the statute also requires in a delisting determination that the best available science be applied so when we look at this whole statute it's saying a recovery plan has to have objective measurable criteria which when and when met would result in a determination that a species may be delisted under the five factor test with the application of the best available science and so each of those eight the first eight claims including the first claim in our arguments that what the plan has will not result in delisting under the five factor test in accordance with the best available science because delisting requires no survival but recovery and so when the species is already threatened and so the argument there is if you allow twenty five percent of the remaining species to go extinct that's not even meeting that bar for survival and certainly not for recovery and so that is that is a more specific claim but it goes to the fact that the recovery reichert criteria have to lead to delisting under the best available science which does not allow a species that's already threatened to go to become further threatened and then be delisted i think the government when they get a chance they're going to stand up and say well that really no if we read the complaint that way then basically any met would lead to a determination of the species v t listed under your reading what what could you not challenge well your honor if it's not part of section four you wouldn't be able to challenge it so for example anything under section seven incident will take statement biological opinions decisions that there's no effect all those types of consultation challenges cannot be challenged under the citizen supervision of section four there's no limit well your honor what one of the district courts found the in the  i believe that was the case addressing the humpbacked of in the district of arizona that court did distinguish slightly it took the recovery plan standard and said well the first part of the standard makes a general statement about conservation and we hold that that's not mandatory that's discretionary but then the court went on to hold and find that in this listing of the three requirements that have to be in recovery plan this part is non discretionary and because the agency hadn't met one of those three parts that was an e s a citizens who claim and so because we have such a specific provision here it is mandatory under this court's decision evans as well as the supreme court's decision and then of the spear and your honor even if the court was inclined to agree that the first claim is too general i would still point the court to the other claims in the complaint because the district or didn't just dismiss the first claim it dismissed all nine claims and so all nine claims would have to be flawed but if we look for example at the second claim and e r fifty six that paragraph forty nine it says the plan fails to incorporate population numbers sizes etc the fourth claim says the failure of the plane the plan to include habitat metrics is a violation of the endangered species that's fifty nine at paragraph sixty five the fifth claim says the failure of the plan to effectively or objectively evaluate threats is a violation that's e r sixty six claim the plan's reliance on vaguely defined monitoring e r sixty one and the third claim demographic criteria are not included in the plan in the plan discards reliance on quantitative targets for bold trout population size now saying that there is no criteria that includes quantitative targets is almost the exact same thing as saying there are no objective criteria and that is a mandate of section section for f there has to be objective and measurable criteria and so the majority of these claims are all aimed at stating the specific ways that the recovery plan does not have objective measurable criteria that will lead to delisting and one of the problems in this case is that we didn't actually have a substantive review yet this case was dismissed on a twelve emotion so we don't even have the administrative record yet and the district court didn't even look to consider the substance of what's actually in the recovery plan and so all we're really asking in this case is a reminder that we can present our case on the merits to the district court of the half a dozen district court cases that the lower court and the parties have cited in their briefing every single one of those cases allowed some kind of review of the substance of a recovery plan and so this case is the anomaly this is the only district court case that we are aware of where the district court completely refused to address any substantive challenge to the recovery plan so for example we know the district of d c allows these challenges those cases are the defenders of wildlife the babbit fun for animals be that it that's the grizzly bear recovery plan the sonoran pronghorn recovery plan we also know that within this circuit the two district court opinions that address recovery plans did allow a substantive challenge the heel a trout recovery plan that was center for biological diversity babbitt that case pacifically address the same issue and held defendants contend that this court does not have jurisdiction over this action because the e s a citizen supervision provides for enforcement of only non discretionary acts then the district court rejected that argument and held the word shell is denoting a definite obligation therefore the statutory language of section fifteen thirty three demonstrates that congress on ambiguously intended that the secretary be required to incorporate the listing criteria where possible or feasible that's nine hundred ninety nine west law three three four three eight zero eight one additionally the other district court case within the circuit another district of arizona case was the humpbacked child case that was the grand canyon trust two thousand and six west low one six seven five six zero again they stated regarding the recovery plan defendants failed to comply with their non discretionary duty accordingly we grant summary judgment for plaintiffs on this cla but i think we have a slightly different reading of what the supreme court was saying and bennett so i think the key is not not the word shall which i think we can all agree creates a mandatory duty but the fact that the court actually distinguishes between what part of the duty is mandatory and what part is discretionary so this is eleven sixteen where the court makes distinction between and it's not your honour's a distinction between what is procedural and substantive but it is a distinction that is between what is non discretionary and discretionary and in that particular case it just happened to be that the procedures were the non discretionary part and the substance was the discretionary so the court says that it is really rudimentary administrative law that the just as the substance of the ultimate decision does not confer discretion to ignore the procedures of the decision making and your honor we'd agree with that but what what the opponents are trying to challenge here actually does go to the discretionary substance so this circuit has been clear and it's case law dealing with non discretionary duty citizen supervisions and other environmental statutes the clean air and clean water act that had identical language for all meaningful purposes that this court only looks to whether or not there is a clear readily ascertainable by an area yes or no determination for these non discretionary duty provisions so for example in our children's earth even though the court acknowledge that the plaintiffs were putting forth a reading of the statute that was in keeping with the purpose of the statute that would have further the purposes as of the goal and where what they were asking for was cited in many other statutory provisions they nonetheless said that there was not a nondiscretionary mandatory duty to read it the way the plane and asked for it to be read and therefore they dismissed the claims and your honor we'd say that the same holds true here and that's why when you look to the way that these particular claims have been played in this particular complaint there isn't jurisdiction under the e s a non discretionary duty sets and supervision so if you compare the actual claims that the appellants have here they're asking for things like  inclusion of certain democrat demographic information habitat information and while those might be examples of objective measurable criteria they are not the only examples and in this case there actually is different measurable criteria that the fish and wildlife service selected that's within it's just question to do and because this complaint doesn't allege that there is no objective measurable criteria within the plan it only takes issue with the fact that there isn't different and additional objective measurable criteria that they would like to have included it doesn't fall within a non discretionary duty citizen supervision as this court has decided has defined them in the past their complaints but your honour's the supreme court has told us in all in twamley that that isn't enough to allege a complaint so the supreme court has said that merely reciting the elements of a cause of action is not sufficient and really citing a legal conclusion is not sufficient they have to then make factual allegations that actually link and connect to and show a plausible violation of the statute now here they've made those legal conclusions and they've state of the cause of action they haven't actually pled facts that would fall within the statute they've only alleged that essentially the service didn't include the type of additional information that they would have also and one like to have included in the plan next turner's i'd like to address why this is also why recovery plans aren't a final agency action and i think perhaps the most helpful way to do that is to clarify the role that record plans actually play in the recovery process and the impact they have on other recovery decisions that are made and i think an important point here is that a lot of those other recovery actions are themselves challengeable in court either because they're finally can see actions under the a p a or because they fall under other sections of the e s a and citizen supervision that aren't issue in this  case so as this court and other courts have held the recovery plan is not a determinant of binding document instead it's meant to serve as a guide post to the agency as it is preparing for the recovery process it's better thought of this sort of a map but the service has a thinks ability to make changes to it as it gains more information so essentially the recovery plan is the agency's best assessment at the beginning of the recovery process of what it will probably need to do in order to recover the species but as recovery continues it gains additional information one of the ways it does this is that the statute mandates that every five years they do a review of every species and as part of that review they have to take public notice and comment where they ask for updated information about the status of the species so that is a formal way in which they're able to gain new information that can then affect the recovery process there's also plenty of informal ways that they do this the statute explicitly allows for them to engage with tribal state private parties interested in conservation to gain updated information about the recovery process consider that notice and comment and then i would say your honor they do have to include the three criteria that are at issue here but once they've done that once there's a by an area yes or no it's in the plan and that's where the court's review end so for example they do have to have some objective measurable criteria they can't just have a plan that is completely devoid of them they do have to have some cost estimates they do have to have an estimate for when they think the plan will be done and they do have to have some cites  review in that case yes your honor because what a non discretionary duty is provision asks is whether or not they yes or no checked the box and took the action now i think what's important to remember is that that number doesn't have a meaningful impact on any other action they can say that it's going to cost a billion dollars and figure out a year later no it's going to cost half of that but the fact that they said it was going to cost a billion dollars doesn't have any direct and meaningful impact on either the fish or wild fish and wildlife service or any other third party just because they are included in the plant so and i think this is in keeping with how this court has looked at these sort of issues in the past  non discretionary duty provision is useful for situations when the stant statute mandates for example that report must be issued by x date and this court can look and decide on the face of a complaint whether or not that there and as the name sort of suggested non discretionary duty statute isn't really an appropriate place to ask questions about the decide how the agency used its discretion that would sort of the intention with the fact that  discretionary duty in the first place what is your best authority for this notion that as long as the agency puts in some quantifiable number  in our children's earth which are all cited in our brief which i do think make it pretty clear that it's a it's a pretty high level cursory review and it doesn't it's not meant to dig into the right or wrong this or any other discretionary aspects of what it is that the agency was doing when putting that number and would you use the the e s a provisions as providing independent jurisdiction assuming that a claim is made independent from the administrative procedure act yes your honor i think that's correct so this is a particularly narrow provision that that they try to bring suit under here the other thing that i would say your honor is i don't think that that this court needs to decide where exactly to draw the line on how far you could go under the citizen supervision in this particular case this isn't a case where the appellants have alleged that this was an empty plan that just had a nonsense number in it that made no sense or that they were in the headings or anything like that if you look at the actual the nature of their claims they go pretty far beyond what's required at the statute your view could there be a rubik on the government could cross in which the numbers were just some plot number in  the same subsection of the recovery plan and therefore would be reviewable i think there probably is a line out there somewhere your honor appellants talked about evans which was just a decision by the by this court and i think part of what might have been motivating the court in that situation in addition to the fact that it was a c s case was that what the plaintiffs allege there was essential ease that the the economic analysis was really not an economic analysis at all because the way it was written was we don't have to include anything in our economic analysis if it's otherwise considered somewhere else and so sort of what they were alleging is you have you have  economic analysis in a way that means that you don't have an economic analysis in the plan so i think there may be situations like that where the court could decide that the agency hadn't met some very minimum threshold for having these three statutory criteria in the plan but again i say that your honor that we don't even come close in this case the court has on the record before at the actual recovery plan we cite in our brief to the places in the record where they have each of these three requirements and in fact the complete isn't even alleging that these three requirements are in there but they're really alleging is that there's not more and additional data that they think would be useful  process counsel can i ask you some questions about claims five and seven and i understand under section thirty three recovery plan have to have objective measurable  criteria and i and looking at claim five i reclaimed five it seems to be saying that the plan here does not have  objective evaluation will fret and to give an example if you go to the r one thirty five one thirty six the top uses phrases like effective management now if there are if the plaintiffs are alleging that terms like effective management are not i guess objective you know effective management they're arguing well that could mean a lot of different things and there are effective managers there are ineffective managers that's it's not a hard data we can point to is that there are and that's but there are many claims five and seven that the language is not certain off i guess you can see or objective enough why wouldn't that be something they could challenge well and say two things your honor first i think that this plan still meets the objective measure book criteria standard and that they are putting if you look at the table on one thirty six they put hard numbers on the number and populations in each of these core areas that needs to meet this threshold and again this court's review of these issues and it's pretty narrow but the other thing i'd say your honor is the district court actually invited appellant he dismissed without prejudice and invited him pellets to amend their complaint if there were additional facts that they could allege and that's not what they did here your honor instead what they wanted to do was bring of a much broader legal theory about what they're allowed to challenge so i don't think really what was happening here was that they were trying to challenge the specific criteria based on the narrow statutory provision and but really what they're asking is for this court to come in and allows for a much broader much more substantive review of what is in the recovery plan in the first place but as to the question of whether the language is non objective measurable criteria you would point us in the earth one hundred five on this if you would point to the chart what about the the idea of affective management could they challenge that if that's the dominant thing if you look at the first paragraph years as if the primary threats have been effectively manage each recovery unit the long term persistence of bull trout should be ensured there i as i understand the complaint they're saying with well what does that mean and that's not effective and in fifteen thirty three f requires you to be very clear your response that would be to the chart yes the other thing i would say your honor is this falls within the agency's discretion for good reason so for example in this court's decision in greater yellowstone coalition talking about the delisting of the grizzly bear in that case the fish and wildlife service actually used the sort of demographic criteria that the palance are asking for and i believe claim three here and they met that criteria and they tried to then delist the grizzly bear and what the court said there was well you've met all the recovery criteria you have however what your criteria plan didn't take into account because it wasn't an issue at the time the plane was created was the fact that there was going to be to combine in the park pines and that was going to have a negative impact on the grizzly bear so you now can't delist because there's this new threat to the bears so actually this idea of focusing on managing threats effectively especially for a species like the  over over such a vast area that lives in many different types of streams and lakes and faces very different localized threats makes a lot of sense and that's why this is the sort of issue that we want to leave to the agencies discretion in determining what kind of objective measurable criteria are going to be the right ones to try and get to a delisting to determination and to try and recover the species but there's some circularity to that argument in the sense that in the seventh claim for example they say that the service hasn't provided clear evidence that a general finding of threats are managed can be made to a certain certainty so the threats are to be managed but then you go back four of the e s a and it talks about objective measurable criteria so where do you find those objective measurable criteria so that you can meet for af again your honor i would say that they are the the specific population numbers that are included for each of these core areas and then managing threats is further defined not just through this recovery plan but through the six regional implementation plans that are referenced incorporated in this plan and i think it's important for the court to also know that there's also more specific core areas specific plans that get made  these are very site specific localized harms with regard to the ball child the ball truck doesn't face the same issues in all of its different habitats and so this was a reasonable within their discretion decision that the agency made that the best way to come up with criteria for when they were actually and when they were actually recovering the species would be to base them off of whether the threats in those specific or hopefully when the charge is delisted and it's in those subsequent final agency actions where it's appropriate for a groups like the opponents to come in and challenge a decision and see if it's based on the best available scientific data and not at this point when it's just an internal guidance document meant to provide a road map towards a later finally can see action because there's not interested in under either the e s a or the a p a we would ask that this court uphold the district court's decision just missed these claims thank you thank you your honor i think the court has really hit the nail on the head when you look at the only citation they provide for what are purportedly the objective measurable criteria which is one thirty five to one thirty six that's just a table that says when seventy five percent of the threats are effectively managed we will do lists but as the court has correctly noted noted we don't know what threats are those aren't defined that save for some later date we don't know what effective means and we don't know what managed means and that's specifically why congress amended the e s a not once but twice again in one thousand nine hundred eight to make the requirements for recovery plan very specific objective measurable criteria and we just don't have that in this recovery plan but again that's getting to the merits of our lawsuit and that is why we brought the lawsuit because this plan so clearly lacks objective measurable criteria but the district court didn't even allow us to get to that point where we look at the merits and it seems that the government is standing before you arguing whether these are objective measurable criteria and we would like to have that argument but we would like to have it first before the district court substantive review of the merits and this is precisely why it was not appropriate to dismissed for lack of jurisdiction because you can't determine whether there are objective measurable criteria in the plan without a substantive review of the plan and we would strongly disagree also with the government's proposition they basically just need to have a heading in their recovery plan that says criteria and then anything below that is a mune from judicial review that is not what benefits spears said that's not what this court held in evans specifically the government made this same argument in evidence and it held that the substance of the critical habitat determination is discretionary that's at three eighty six fed there and at eighty three and this court rejected that claim and held that the review of the substance of a critical habitat determination is an e s a citizen supervision and because that provision for critical habitat is even more broad than the mandatory language of section four f here certainly a challenge to recovery plan can and should be brought under the s c citizen supervision and i see that i am out of time unless you have any