[00:00:00] Speaker 03:
Good morning.

[00:00:01] Speaker 03:
May it please the court, Bridget Pissarianos for Appellants Alaska Wildlife Alliance, I'd like to reserve five minutes for rebuttal.

[00:00:08] Speaker 03:
The Marine Mammal Protection Act doesn't just prohibit killing, but harming and even harassing marine mammals, unless several narrow exceptions are met.

[00:00:16] Speaker 03:
Congress's intent was to keep populations at healthy and sustainable levels.

[00:00:20] Speaker 03:
The southern Beaufort Sea population of polar bears isn't there.

[00:00:23] Speaker 03:
It may be wiped out in the next 25 years.

[00:00:27] Speaker 03:
Because this population is on the brink, the services scientists have acknowledged that the death of even one bear or cub from oil and gas activities may not be allowable under the MMPA.

[00:00:37] Speaker 03:
It's against this backdrop that we have this ITR.

[00:00:40] Speaker 03:
The services model showed that the oil industry's activities here would cause a significant amount of take.

[00:00:46] Speaker 03:
And the Alliance doesn't challenge those models or the service's technical findings.

[00:00:51] Speaker 03:
But the problem is that the agency didn't grapple with its own findings.

[00:00:55] Speaker 03:
It subdivided them in ways that violate the statute and aren't entitled to deference.

[00:01:00] Speaker 03:
And any of the violations in the Alliance's brief is an independent basis for finding the IT run lawful.

[00:01:07] Speaker 03:
First, the service found a 75% chance of level A take happening each year.

[00:01:12] Speaker 03:
And it didn't dispute this in the ITR.

[00:01:16] Speaker 03:
But the service said the chance of level A take happening was too low to consider.

[00:01:20] Speaker 03:
So it didn't analyze the impact of that serious take on the population or consider ways to mitigate it.

[00:01:27] Speaker 03:
It avoided the question entirely by splitting this into a 29% chance of non-serious level A take and a 46% chance of serious level A take.

[00:01:38] Speaker 03:
And the service has never once used these categories before, even in its decades of administering the MMPA for polar bears and issuing ITRs.

[00:01:46] Speaker 01:
What prevented it from doing that?

[00:01:47] Speaker 03:
Well, this violated the statute because Congress already defined take in the MMPA.

[00:01:54] Speaker 03:
And it established two categories of harassment,

[00:01:57] Speaker 03:
Level A, which is the potential to injure, and Level B, which is the potential to disturb.

[00:02:02] Speaker 03:
And Section 1371 allows the service to permit take if certain conditions are met.

[00:02:07] Speaker 03:
But the plain language of the statute doesn't let the service split potential injuries into different Level A categories in a way that... I don't understand why it doesn't allow it to do it.

[00:02:20] Speaker 05:
I understood your point to be a little bit different.

[00:02:23] Speaker 05:
I'm going to refer to what they did with the serious and non-serious

[00:02:27] Speaker 05:
as sort of A1 and A2.

[00:02:29] Speaker 05:
They didn't call it that, but I'm going to call it that.

[00:02:32] Speaker 05:
Congress called A and B, and then service split level A into two more subcategories.

[00:02:39] Speaker 05:
And it seems to me that your argument is that level A is both 1 plus 2, and you have to add the 46 plus the 29, and that gives you 75%.

[00:02:49] Speaker 05:
That seems to me to be a very reasonable argument, and I'm going to have lots of questions for fish and wildlife when we get there.

[00:02:58] Speaker 05:
Now I want to know is there any overlap between those two categories or is A2, the non-serious subsumed in A1 in which case adding them would not be correct?

[00:03:11] Speaker 03:
The service specifically said that there is no overlap there and that's on page 124 of volume 2 of the excerpts of record.

[00:03:17] Speaker 03:
You can find it in the first column.

[00:03:19] Speaker 03:
They explicitly explain that once a den suffered a level A take, that den was removed from the model such that it couldn't be exposed to another level A take again.

[00:03:30] Speaker 03:
So those categories are wholly independent of each other.

[00:03:32] Speaker 03:
The service didn't dispute that in the ITR below, but it was raised on appeal for the first time.

[00:03:37] Speaker 02:
So what's the remedy if we've got this A1 and A2?

[00:03:45] Speaker 02:
It seems to me intuitively that the remedy isn't in the Court of Appeals.

[00:03:50] Speaker 02:
to figure that out, but maybe you can tell me what do you think is the remedy if we determine

[00:03:56] Speaker 02:
that this splitting of it could potentially get you to too big of a number if you add them up.

[00:04:03] Speaker 02:
Sure.

[00:04:04] Speaker 03:
The vacator is the default remedy under the APA.

[00:04:08] Speaker 03:
We do recognize here that there are some questions about ongoing oil and gas activities and the need to protect polar bears during the remand such that it might be appropriate to remand this to district court to consider different kinds of remedies consistent with this court's opinion and to further develop the facts of that.

[00:04:27] Speaker 01:
I just want to go back to why what they did is wrong.

[00:04:30] Speaker 01:
It seems that you have two points here.

[00:04:32] Speaker 01:
One is that it violates the statute and one is that maybe they didn't consider the implications of this as much as they should.

[00:04:39] Speaker 01:
So starting with the first one, why do you think it violates the statute?

[00:04:44] Speaker 03:
It violates the statute because the MMPA generally prohibits the service from authorizing take unless these certain conditions are met that Congress set out, and that's the overarching moratorium at Section 1371.

[00:04:55] Speaker 03:
And the service can't rationally make the findings that are required under Section 1371 unless it assesses how much and what type of take may occur.

[00:05:06] Speaker 03:
And so for purposes of assessing that, Congress specifically defined harassment and take for purposes of that exception at Section 13-62-17.

[00:05:14] Speaker 01:
Right, but I don't think they're saying this is something other than Level A take.

[00:05:18] Speaker 01:
What they're saying is it's important to look within that and to characterize the different types of risks within that.

[00:05:25] Speaker 01:
I guess I don't see why that's not a more precise way of doing it as opposed to just monolithically calling something all Level A on the assumption that it might all be the same.

[00:05:36] Speaker 03:
So, well, two points there, Your Honor.

[00:05:37] Speaker 03:
The first is that by doing it this way, the service basically entirely dodged the question of whether injuries were expected to occur, and it didn't consider how to mitigate impacts from injuries to polar bears, because whether it's a serious injury or a non-serious injury, it's still an injury as Congress defined it.

[00:05:55] Speaker 03:
and the service needs to assess it on that basis.

[00:05:58] Speaker 01:
I'm not sure they disagree that it's an injury in that sense.

[00:06:02] Speaker 01:
It just seems that they're discounting it as not as bad of an injury.

[00:06:07] Speaker 03:
They are, but that is still not permissible.

[00:06:09] Speaker 03:
And I think what Your Honor is referring to is some of the negligible impact findings.

[00:06:14] Speaker 03:
And we don't dispute that they could consider different types and severities of injury for purposes of assessing whether those injuries would pose a negligible impact on the population or something more.

[00:06:26] Speaker 03:
But it doesn't change the fact that at the end of the day, Congress said, this is how we're defining level A. This is how you have to consider it for purposes of seeing if these exceptions are met.

[00:06:35] Speaker 03:
And I can turn next to the negligible impact piece of this, but even assuming that the service can split up,

[00:06:43] Speaker 03:
level A for its negligible impact findings, the agency still found a 46% chance of that serious level A lethal take happening every year, and it didn't consider the total probability over five years.

[00:06:58] Speaker 03:
And this is the part that the service wants you to think is a complex math problem, but it's actually not.

[00:07:03] Speaker 03:
This is just a legal question of what reasonably likely and total of such taking mean.

[00:07:09] Speaker 03:
And to touch on the first problem, the service unlawfully raised the evidentiary bar for its negligible impact finding.

[00:07:17] Speaker 03:
Because under the services regulations, an impact is negligible if, quote, it is not reasonably likely to adversely affect annual rates of recruitment or survival.

[00:07:28] Speaker 03:
And the reasonably likely standard doesn't mean more likely than not.

[00:07:31] Speaker 03:
We cite some cases on page 36 of our opening briefs.

[00:07:35] Speaker 03:
And the defendants don't argue otherwise here that it doesn't require a preponderance of evidence standard.

[00:07:41] Speaker 05:
The problem- Your view is that more likely than not is the preponderance of the evidence standard, and it's generally 50% plus.

[00:07:47] Speaker 03:
Yes.

[00:07:48] Speaker 05:
And that reasonably likely is something less than 50%.

[00:07:52] Speaker 05:
Yes.

[00:07:53] Speaker 05:
Greater than 10%, less than 50%.

[00:07:56] Speaker 03:
Yes, the Supreme Court has said in considering that standard in other contexts that it means more than remote, outlandish, or simply hypothetical.

[00:08:05] Speaker 03:
And the problem here is that the service did apply this greater than 50% standard, because it's undisputed that it found there was a 46% chance of a death or deadly injury to a cub every year that this five-year regulation is in place.

[00:08:20] Speaker 01:
But they've also said, we're focusing more on the median because we think that's a more accurate figure.

[00:08:28] Speaker 01:
And that seems like a pretty technical judgment.

[00:08:29] Speaker 01:
So how do you respond to that?

[00:08:31] Speaker 03:
That's actually not a technical judgment.

[00:08:34] Speaker 03:
That's another way of restating that they didn't have to consider something that was less than 50%.

[00:08:39] Speaker 03:
And here's why.

[00:08:41] Speaker 03:
The median is just, it's the middle number in a set of outputs when you arrange them in order of size.

[00:08:47] Speaker 03:
And so the service ran its model 10,000 times, and 54 out of every 100 times, the model spit out a zero.

[00:08:56] Speaker 03:
But then the other 46 out of 100 times, the model found there would be one or potentially more cub deaths.

[00:09:04] Speaker 03:
So the median is zero, and zero was the most likely outcome.

[00:09:08] Speaker 03:
But the problem here is that this median doesn't actually change the fact that the service was actually just saying, we don't have to consider anything unless the probability is 50% or greater.

[00:09:21] Speaker 01:
Yeah, I mean, there's also other things they consider beyond the model, though, right?

[00:09:25] Speaker 01:
The models were computer-generated models, but there's lots of other parts of the record beyond just this.

[00:09:32] Speaker 03:
There are, but the problem with the service pointing to those here is that the service made it clear in the record that it was discounting the 46% of model runs based on the not more likely than not standard.

[00:09:46] Speaker 03:
And it also explicitly said that it was basing its take estimates on that model.

[00:09:50] Speaker 03:
And it says that at page 107, where it says its take estimates are being made on the model.

[00:09:56] Speaker 03:
And I'd also point the court to comment responses 30 and 33 in the ITR, and those are on page 140 of volume two of our excerpts of record, where the service, again, is tying its negligible impact determination to the fact that 46% isn't reasonably likely, and the median is zero, and zero is the most likely outcome.

[00:10:15] Speaker 03:
So it was actually using these quantitative numbers for its decision.

[00:10:19] Speaker 03:
And then the second point, too, is that

[00:10:22] Speaker 03:
The model actually incorporated the things that the service is pointing to as somehow determinative of the outcome.

[00:10:29] Speaker 03:
For instance, the service explained that its model took into account the footprint of the oil industry's activities

[00:10:37] Speaker 03:
It simulated dens on the landscape.

[00:10:40] Speaker 03:
The model accounted for there being three aerial surveys for detected dens and assumed that detected dens would have a mile buffer.

[00:10:48] Speaker 03:
So the model actually incorporated these very things that the service points to as part of its justifications.

[00:10:54] Speaker 03:
Those were already baked in at the outset.

[00:10:57] Speaker 03:
And they don't really explain how those qualitative things that they point to here would have changed that percentage in any way.

[00:11:07] Speaker 03:
And the second problem with the service's negligible impact determination is that the service can only allow take where, quote, the total of such taking would have a negligible impact on the population.

[00:11:19] Speaker 03:
But here, again, the service split up its findings, and it claimed that it could lawfully just look at annual take in isolation, not the total.

[00:11:28] Speaker 03:
And that is, again, at comment response 30 on page 140 of volume 2 of the excerpt of record, where the service says that the negligible impacts are best considered in annual terms.

[00:11:39] Speaker 05:
If the service is allowed to give an ITR of five years, but it doesn't have to, it could do it on a yearly basis.

[00:11:46] Speaker 05:
If they were to have broken up the ITR into one-year segments, then their estimates are still good, right?

[00:11:54] Speaker 05:
If they are only looking at one-year segments.

[00:11:57] Speaker 05:
Yes, if this had only been a one-year ITR.

[00:11:59] Speaker 05:
But this was a five-year activity.

[00:12:01] Speaker 02:
That's right.

[00:12:01] Speaker 02:
And that's what changes the calculus.

[00:12:03] Speaker 05:
Exactly.

[00:12:04] Speaker 05:
Yes.

[00:12:04] Speaker 05:
Because what you wanted, as I understand, what your expert did was said, OK, it's 46.

[00:12:10] Speaker 05:
We'll take your number on the serious A1, 46%.

[00:12:14] Speaker 05:
But if it's 46% every year for five years, what is the chance of some take during that five-year period?

[00:12:20] Speaker 05:
And that's what he calculated at about 94%.

[00:12:23] Speaker 03:
That's correct.

[00:12:24] Speaker 03:
Yeah, the service didn't argue that that 94% was wrong.

[00:12:27] Speaker 03:
They simply said they didn't have to look at it because they could look at the 46.2% chance each year over five years.

[00:12:35] Speaker 03:
But again, that's not the total.

[00:12:37] Speaker 03:
That's each year in isolation and no one disputes that the oil industry applied for a five-year

[00:12:43] Speaker 03:
Take permit and that that is what Fish and Wildlife Service granted So that's what it had to look at and the service can't point to this mention of annual rates of recruitment and survival and its regulations as a basis for ignoring the MMPa's clear requirement that it's the total of such taking that has to be considered for the negligible impacts so you interpret total to mean you have to add it up over the five years and

[00:13:07] Speaker 03:
Yes, or at least do something.

[00:13:09] Speaker 03:
They couldn't just look at each annual year and call that the total, because that was just one year when the total was five.

[00:13:15] Speaker 03:
So yes, here we think they should have, because they had these numbers, look at that total probability.

[00:13:21] Speaker 03:
They weren't free to disregard it.

[00:13:23] Speaker 01:
Has any court addressed this issue?

[00:13:26] Speaker 03:
Not that I'm aware of.

[00:13:27] Speaker 03:
This is new.

[00:13:29] Speaker 03:
The service just came out with this model in 2020.

[00:13:31] Speaker 03:
It's in our record.

[00:13:34] Speaker 03:
So this probability model hasn't really come forth yet.

[00:13:38] Speaker 03:
But the idea that courts need to look at the total take is not new.

[00:13:43] Speaker 03:
you know, that hasn't come up specifically in a numerical context, especially in these ITRs for polar bears, because historically they've been a lot of qualitative assessments, but the service does recognize that the statute requires it look at the total take, but here when you look at their comment responses and including on page

[00:14:04] Speaker 03:
125 of volume 2 of our excerpt of record, where it's the sum of harassment of all sources, the service says that the sum is this 46.2 number, which table 8 on page 124 makes clear that number is actually the annual number.

[00:14:21] Speaker 02:
Could you also comment on this issue of the same bear versus different bears?

[00:14:27] Speaker 03:
Yes, the services model specifically assumed that each take for purposes of its small numbers finding would be to a different bear.

[00:14:37] Speaker 03:
And just to be clear, the small numbers argument is tied to level B harassment, not this

[00:14:44] Speaker 03:
A2 or a serious level A take.

[00:14:47] Speaker 03:
So that's level B harassment.

[00:14:49] Speaker 03:
And the problem there is that the ITR authorizes take of 443 individual bears by level B harassment.

[00:14:57] Speaker 03:
And that is nearly half the population of 907 bears.

[00:15:02] Speaker 03:
And no one argues that take of half the population is small.

[00:15:06] Speaker 03:
And this court explained in Center for Biological Diversity v. Salazar that

[00:15:12] Speaker 03:
the services that that small numbers requirement is a distinct check on the service's ability to authorize take under section 1371.

[00:15:20] Speaker 03:
So splitting up the total into smaller chunks and ultimately allowing take of half the population would just render the small numbers check meaningless.

[00:15:31] Speaker 03:
And that's contrary to what Congress intended in the MMPA.

[00:15:35] Speaker 03:
And unless the court has further questions, I'll reserve the remainder of my time.

[00:15:39] Speaker 01:
Okay.

[00:15:39] Speaker 01:
Thank you.

[00:15:54] Speaker 00:
May it please the court, Rebecca Jaffe appearing on behalf of the Fish and Wildlife Service.

[00:15:59] Speaker 00:
I'm going to take 15 minutes today, and the Intervenor Alaska Oil and Gas Association is going to take five.

[00:16:08] Speaker 00:
For decades, the service has issued incidental take regulations for polar bears in the southern Beaufort Sea area for oil and gas exploration, development, and production activities.

[00:16:18] Speaker 00:
This rule covers similar activities that past rule covers,

[00:16:22] Speaker 00:
past rules covered, albeit with requirements for far more extensive mitigation measures.

[00:16:27] Speaker 00:
And like past rules, this rule complies with the MMPA.

[00:16:32] Speaker 00:
The MMPA mandates that the service shall allow incidental taking of polar bears so long as certain requirements are met.

[00:16:40] Speaker 00:
I'll focus here today on the small numbers requirement and the negligible impact requirement.

[00:16:47] Speaker 00:
Starting with the small numbers requirement,

[00:16:51] Speaker 00:
The service reasonably assessed small numbers on an annual basis.

[00:16:55] Speaker 00:
Plaintiffs are adding up the small numbers over all five years of the rule, but the service reasonably looked at it annually.

[00:17:03] Speaker 00:
And there's a couple reasons why that's reasonable.

[00:17:05] Speaker 00:
The first is that the phrase total of such taking in the statute is in the negligible impact phrase, not the small numbers part of the statute.

[00:17:13] Speaker 00:
Congress said small numbers in the statute, but it did not say over what time period.

[00:17:19] Speaker 00:
It did not define the term small numbers at all.

[00:17:21] Speaker 00:
And in the legislative history, it even recognized that small numbers is an imprecise phrase.

[00:17:27] Speaker 00:
The annual approach, evaluating small numbers on an annual basis, is consistent with the Fish and Wildlife Service's past practice and current practice, and it's also consistent with the practice of the National Marine Fisheries Service.

[00:17:40] Speaker 00:
And the annual approach makes sense because there's some changes in the population every year.

[00:17:46] Speaker 00:
Overall, the population has been roughly consistent, but some bears are born and some bears die every year, because there's also some variability in industry activities every year.

[00:17:57] Speaker 00:
The service referenced these annual metrics in 2ER138, and it referenced the variability in industry activities in several places, but 2ER78 is one example of that.

[00:18:15] Speaker 00:
As to Judge McKeown's question, the model is a new model, and it does have some limitations, which the service acknowledged.

[00:18:25] Speaker 00:
One of those limitations is that the service could not reliably calculate how many takes would accrue to the same animals.

[00:18:32] Speaker 00:
So it conservatively assumed each take would be of a different bear.

[00:18:37] Speaker 00:
And the model indicated there would be a maximum of 92 takes per year, which is 10.14% of the population.

[00:18:45] Speaker 00:
and the service reasonably concluded that's a small number.

[00:18:48] Speaker 00:
That's what the service authorized, but it also did a qualitative analysis and recognized it had to look at the history of take under, for the past 30 years, there have been nine previous incidental take regulations.

[00:19:03] Speaker 00:
It also looked at the geographic scope of industry activities compared to the range of the polar bears.

[00:19:09] Speaker 00:
And the model had limitations, which the service had to acknowledge.

[00:19:15] Speaker 00:
Turning to the negligible impact finding, which is separate from the small numbers finding, I do want to clarify, to be very clear, the categories, as Judge Bybee called them, of A1 and A2, the service used those only for the negligible impact analysis and for no other purpose.

[00:19:39] Speaker 00:
The statute says that the service must ensure that the taking authorized under a rule will have a negligible impact.

[00:19:50] Speaker 00:
But it doesn't define negligible impact.

[00:19:54] Speaker 00:
The regulation defining negligible impact says that it defines negligible impact as whether any impacts are reasonably likely to affect the survival and recruitment of the population.

[00:20:06] Speaker 00:
Level A and B harassment are concepts in the statute, but the statute does not mandate that the service use those concepts specifically as part of the negligible impact inquiry, and neither does the regulation.

[00:20:18] Speaker 05:
Okay.

[00:20:20] Speaker 05:
I don't think there's any inherent problem in the service deciding to subdivide Level A. My problem comes when you calculate A1 and A2 separately.

[00:20:32] Speaker 05:
and then fail to add them together, because A1 plus A2 is what A equals.

[00:20:36] Speaker 05:
Once you subdivide them, level A is still what Congress said.

[00:20:40] Speaker 05:
It requires certain kinds of actions or calculations by the service.

[00:20:45] Speaker 05:
So it seems to me that when you only look at the 46% of A1, you've completely ignored A2.

[00:20:53] Speaker 05:
But A2 is a part of A. So I don't understand what the service has done here.

[00:20:59] Speaker 00:
Your Honor, I beg to differ for two reasons.

[00:21:03] Speaker 00:
The first is that that's just one piece.

[00:21:07] Speaker 00:
That's one data point that the model produced.

[00:21:09] Speaker 00:
It also produced a median output.

[00:21:11] Speaker 05:
It produced a median.

[00:21:12] Speaker 05:
Just keep with me on my logic.

[00:21:16] Speaker 05:
Is there something wrong with my logic that A1 plus A2 equals A?

[00:21:23] Speaker 00:
Yes, Your Honor.

[00:21:24] Speaker 05:
OK.

[00:21:24] Speaker 05:
Are those overlapping categories?

[00:21:26] Speaker 05:
So are we double counting?

[00:21:27] Speaker 05:
Is that the problem?

[00:21:28] Speaker 00:
There could be double counting.

[00:21:30] Speaker 00:
Plaintiffs note that the model assumed if there's one particular den that has take in the early denning period, for example, then it wouldn't have take later on.

[00:21:41] Speaker 00:
That is true, but the model was looking at take across the whole population.

[00:21:45] Speaker 05:
Right, but when you subdivide, I mean, Fish and Wildlife was not obligated to do this subdivision, but once it decided to do that and it gave us separate percentages for A1 and A2,

[00:21:58] Speaker 05:
And both of those are part of A. I don't understand why you don't have to add those two percentages together.

[00:22:05] Speaker 05:
Now, if you're going to tell me that there's some overlap there, then I need the surface to explain to me how much overlap there is.

[00:22:11] Speaker 05:
Because if A2 is completely subsumed in A1, then it's irrelevant.

[00:22:16] Speaker 05:
But if it's not, then it seems to me you've got to add them together.

[00:22:21] Speaker 00:
Your Honor, I do think the service was obligated to define them, because the question under the negligible impact inquiry is, will the take affect the population's survival and recruitment?

[00:22:31] Speaker 00:
And the science indicated that the A1 impacts, i.e.

[00:22:36] Speaker 00:
lethal take or injury that could cause mortality, the service said those maybe could affect survival and recruitment of the population.

[00:22:44] Speaker 00:
A2 impacts were the uncertain fitness cost.

[00:22:48] Speaker 00:
For example, a cub may be a little bit less mobile.

[00:22:51] Speaker 00:
And the service said there's no data indicating that those A2 impacts can affect survival or recruitment.

[00:22:58] Speaker 00:
And so it would have been arbitrary for it to discount those scientific differences.

[00:23:04] Speaker 00:
And it explained those scientific differences between the A1 and A2 categories, although it was using different names, at 2ER148 and 2ER146.

[00:23:19] Speaker 01:
It seems to me it's not that different than having said...

[00:23:23] Speaker 01:
I mean, this is a sophisticated model, right?

[00:23:25] Speaker 01:
So the model is now more very detailed, but one could have just said, we're estimating a 75% probability of level A take.

[00:23:32] Speaker 01:
However, within that level A take, there's considerable variation of what that means.

[00:23:38] Speaker 01:
And we need to probe deeper and explain why not all of that is the same in doing our negligible impact.

[00:23:44] Speaker 01:
Here, you basically just upfront broke it into two and analyze it that way.

[00:23:48] Speaker 01:
But I don't see why you couldn't just described it the way I'm describing and essentially the same thing.

[00:23:55] Speaker 00:
I suppose I do want to flag that the 75% figure is plaintiff's figure.

[00:24:00] Speaker 01:
I get that.

[00:24:01] Speaker 01:
But even on those terms, you could have done some addition.

[00:24:05] Speaker 01:
You didn't even have to have A1 and A2.

[00:24:07] Speaker 01:
You could have just said A and then had a further analysis that said, let's now explain what this A number is really composed of.

[00:24:14] Speaker 01:
And in fact, in the services view, it seems that there's some different things within A that are worth considering.

[00:24:21] Speaker 00:
Yes, Your Honor.

[00:24:22] Speaker 00:
Alternatively, the service could have said,

[00:24:25] Speaker 00:
we're calling category one happy and category two sad.

[00:24:32] Speaker 00:
I mean, it could have used any names whatsoever because it doesn't have to use the level A and level B names.

[00:24:38] Speaker 00:
It has to question whether the particular take will impact the survival or recruitment of the species.

[00:24:46] Speaker 05:
It almost feels like you've taken that A2 category and sort of downgraded it to a level B.

[00:24:52] Speaker 05:
And it just feels like you felt like you're going to second-guess Congress on this one, and that the things that the service has under its model, still defined as level A categories, somehow should not count.

[00:25:12] Speaker 00:
Again, I beg to differ, Your Honor.

[00:25:14] Speaker 00:
First of all, the service did separately look at level B harassment in its negligible impact inquiry.

[00:25:20] Speaker 00:
It said level B would likely accrue to the mother bears or the female bears.

[00:25:26] Speaker 00:
But there are specific places where Congress said, in the MNPA, you have to use level A and level B. For example, in authorizations for bona fide scientific research, that's at 16 USC 1374.

[00:25:42] Speaker 00:
C3C.

[00:25:43] Speaker 00:
It said there's different requirements for bona fide scientific research depending on whether level A or level B is predicted.

[00:25:51] Speaker 00:
Also, in terms of permissions under the MMPA for photography, it said that could only be level B, and that's at 16 USC 1374 C6.

[00:26:03] Speaker 00:
So I don't think that the service was in any way... Okay, but... I'm sorry, go ahead.

[00:26:09] Speaker 02:
No, I mean, what's confusing here is that you did decide to divide up level A, and you're now telling us if I understand it, A1 is could affect, is that right?

[00:26:23] Speaker 02:
And A2 is uncertain.

[00:26:27] Speaker 02:
But that A2 being uncertain doesn't discount any of the percentage.

[00:26:33] Speaker 02:
I mean, you can't just let it wipe it out of the calculation, can you?

[00:26:38] Speaker 00:
No, Your Honor, I may have misspoken.

[00:26:41] Speaker 00:
The A2 category is uncertain fitness cost.

[00:26:45] Speaker 00:
There's no, to the Cubs, there's no data indicating that that would have any impact on survival or recruitment.

[00:26:52] Speaker 00:
The service wasn't saying it's uncertain whether this might affect survival or recruitment.

[00:26:56] Speaker 00:
It was saying there is some fitness cost.

[00:26:59] Speaker 00:
But there's a big difference between having a fitness, you know, impairing fitness in some way and killing a cup.

[00:27:07] Speaker 02:
Right, but then how do you reconcile the two groups?

[00:27:11] Speaker 02:
That's the question that we're having.

[00:27:13] Speaker 02:
Once you lay them out there.

[00:27:16] Speaker 05:
Level A is injury.

[00:27:19] Speaker 05:
Level B is disturb.

[00:27:22] Speaker 05:
And both of those are harassment.

[00:27:24] Speaker 05:
Level A and level B are both harassment.

[00:27:27] Speaker 05:
Level A is injury.

[00:27:29] Speaker 05:
You've described the service subdivided those into serious injury and non-serious injury.

[00:27:36] Speaker 05:
But they're both categories of injury.

[00:27:40] Speaker 05:
And that's what Congress said was level A. I don't see how you get to ignore non-serious injury as though it's not an injury.

[00:27:50] Speaker 05:
It may not be serious, but it's still an injury, and that's what Congress defied.

[00:27:54] Speaker 00:
Well, the service wasn't ignoring it.

[00:27:57] Speaker 00:
It was saying, we have to do something specific for the negligible impact inquiry.

[00:28:02] Speaker 00:
We have to say, will the taking affect the survival and recruitment of the population?

[00:28:08] Speaker 00:
That's a specific inquiry.

[00:28:10] Speaker 00:
And the service knows there are some injuries that may affect survival and recruitment, and there are some that won't.

[00:28:16] Speaker 00:
It would have been arbitrary to disregard that science, indicating the differences between different types of injuries.

[00:28:23] Speaker 01:
When you're doing a negligible impact assessment, do you need to use, does the service need to use level A and level B?

[00:28:30] Speaker 00:
Not at all, Your Honor.

[00:28:32] Speaker 00:
It can use any categories.

[00:28:34] Speaker 00:
I mean, it can use whatever the science takes it to, I think.

[00:28:38] Speaker 01:
I wonder whether some of the confusion here is just simply over labeling because it seems that the service could have done exactly as you've described it and not called it level A. You could have just said, well, we've done this analysis and modeling and we're seeing some injuries that are more serious and some injuries that are more speculative and discount the speculative ones, focus on the serious ones and make a judgment as to whether that's negligible impact.

[00:29:03] Speaker 01:
That has nothing to do with whether you're calling it level A or level B or anything else.

[00:29:08] Speaker 00:
Yes, Your Honor, exactly.

[00:29:09] Speaker 00:
It could have called the A1 category potential survival impact, and it could have called the A2 category small injury, no potential survival impact.

[00:29:19] Speaker 00:
It could have used any names at all.

[00:29:21] Speaker 01:
Why did it use level A here?

[00:29:22] Speaker 01:
What was the thinking behind that, if you know?

[00:29:25] Speaker 00:
I do not, Your Honor.

[00:29:29] Speaker 05:
So I want to follow up on Judge Bress' question.

[00:29:32] Speaker 05:
I think it's a very important question.

[00:29:33] Speaker 05:
So what is level A and level B relevant to then?

[00:29:36] Speaker 05:
It's defined in 1362.

[00:29:38] Speaker 05:
Is it not operational in 1371?

[00:29:43] Speaker 00:
Congress did not require the service to use the level A and level B categories in the negligible impact inquiry.

[00:29:49] Speaker 05:
Did it use the term injuries or disturb elsewhere in 1371?

[00:29:52] Speaker 05:
They're defined in 1362.

[00:29:55] Speaker 05:
Are they used elsewhere in 1371?

[00:29:57] Speaker 05:
That's a pretty long, pretty complex statute.

[00:30:00] Speaker 05:
So I have a statute in front of me.

[00:30:02] Speaker 00:
Not to my knowledge, not elsewhere in 1371.

[00:30:06] Speaker 00:
But as I mentioned earlier, Congress did use those.

[00:30:09] Speaker 00:
terms specifically for the requirements for issuing bonafide scientific research authorizations and photography authorizations.

[00:30:17] Speaker 00:
So Congress knows how to say, I want you to use level A and level B. And it did that with specific types of authorizations, but it did not with the authorizations under three.

[00:30:29] Speaker 05:
It has used level A and level B as two different forms of harassment.

[00:30:33] Speaker 05:
And the term harassment certainly appears in 1371.

[00:30:36] Speaker 00:
Yes, Your Honor.

[00:30:39] Speaker 05:
So it suggests that those are relevant to that, a taking of harassment or small numbers.

[00:30:46] Speaker 00:
Yes, Your Honor.

[00:30:47] Speaker 00:
And the service did do a level A. I mean, it only authorized level B harassments with the rule and the small numbers.

[00:30:56] Speaker 05:
If level A and level B have sort of no correlative in 1371, why did the service use them at all?

[00:31:05] Speaker 00:
I don't know, Your Honor.

[00:31:07] Speaker 00:
But it was making different categories because that's where the science took it.

[00:31:11] Speaker 00:
It had to use the best available science.

[00:31:14] Speaker 05:
But it certainly seems confusing for us.

[00:31:17] Speaker 05:
We are non-experts.

[00:31:19] Speaker 05:
If you're going to take something that's defined in 1362 and use it to help calculate something in 1371, but then tell us that it's ultimately irrelevant, they didn't have to do it.

[00:31:30] Speaker 00:
Yes, Your Honor.

[00:31:30] Speaker 05:
That makes the path of the agency's reasoning harder to follow.

[00:31:33] Speaker 05:
It doesn't make it arbitrary and capricious necessarily, but it does make it a whole lot harder to follow.

[00:31:40] Speaker 00:
Yes, Your Honor.

[00:31:41] Speaker 00:
I think there's a lot of things looking at...

[00:31:48] Speaker 05:
I would like to turn to the five-year question as to whether this is the question as to whether even taking your numbers of 46.2% on the A1, the serious injury, and whether you had to calculate that for a five-year term, which their expert says comes out to about 94%.

[00:32:10] Speaker 00:
So we do agree that the service has to look at the total of such taking over the five-year term.

[00:32:18] Speaker 00:
But we disagree that the service has to use the probability output specifically.

[00:32:23] Speaker 00:
Plaintiffs prefer that output, but the service had a variety of data points in front of it, and it reasonably focused on the median output.

[00:32:32] Speaker 00:
And the total of such taking per the median output was zero over five years.

[00:32:37] Speaker 00:
It was zero each year, and it was zero over five years.

[00:32:42] Speaker 05:
Yeah, but that's because you calculated it at less than 50% once you subdivided it.

[00:32:48] Speaker 05:
So you subdivided it, come up with 46%, said, OK, so the probability in any given year is likely to be zero because it's only 46% possibility.

[00:32:59] Speaker 05:
But if you have 46% each year over five years, it seems to me that during that five-year period, there's a pretty good chance that at least one year, there's likely to be a taking.

[00:33:12] Speaker 05:
That doesn't seem to be rocket science to calculate.

[00:33:22] Speaker 00:
Per the probability output, I do want to note that the 94% calculation is plaintiff's calculation, not the services.

[00:33:29] Speaker 00:
But in any event, the model produced different outputs.

[00:33:34] Speaker 00:
And aside from the model's outputs, the service also did a qualitative analysis.

[00:33:38] Speaker 00:
It has 30 years of history of oil and gas activities in this area.

[00:33:42] Speaker 00:
And it was looking at a host of information, not just the model.

[00:33:48] Speaker 00:
Within the model's outputs, it focused on the median, which, as I said, was zero.

[00:33:55] Speaker 00:
It was the median result.

[00:33:56] Speaker 00:
It was the most likely result.

[00:33:57] Speaker 00:
But that's only for one year.

[00:33:58] Speaker 05:
That was the median per year, right?

[00:34:03] Speaker 00:
Yes, Your Honor.

[00:34:03] Speaker 00:
And the service, the model calculates each year independently because there's different industry activities each year.

[00:34:11] Speaker 05:
And this was all relevant to the question of negligible impact.

[00:34:15] Speaker 00:
Yes, Your Honor.

[00:34:15] Speaker 05:
Which does use the word, where the statute does use the word total.

[00:34:18] Speaker 00:
Yes, and we don't dispute that.

[00:34:21] Speaker 00:
But if your number is zero, the total every year, then the total over five years is zero.

[00:34:28] Speaker 00:
Right.

[00:34:28] Speaker 05:
It's a little bit of a fallacy of composition, though.

[00:34:32] Speaker 05:
If you keep subdividing things, then we may end up with what is the chance of taking a bear in the next second approaches zero.

[00:34:41] Speaker 05:
But if we continue to add those over the course of five years,

[00:34:45] Speaker 05:
It changes things, but if we look at any individual second during that five-year period, now there's no chance we're going to take a bear.

[00:34:52] Speaker 00:
Your Honor, I beg to differ.

[00:34:54] Speaker 00:
The service, I mean, looking at each year individually for the model made sense for a variety of reasons.

[00:35:00] Speaker 00:
First of all, there's some variability in industry activities each year, and it had to account for that.

[00:35:04] Speaker 00:
Second of all, denning season happens once a year.

[00:35:07] Speaker 00:
The service wasn't subdividing things by the day or the second.

[00:35:11] Speaker 00:
It was looking at each year, and the result each year was zero, and it focused on that.

[00:35:19] Speaker 00:
I see that I'm quite over my time.

[00:35:22] Speaker 05:
Let me see if there are further questions for you.

[00:35:24] Speaker 05:
I do have one last question.

[00:35:26] Speaker 05:
If we were, if, and I'll say that's a big if, if the panel were to find that we thought that there was something that was incomplete,

[00:35:35] Speaker 05:
Maybe arbitrary and capricious, maybe not, but at least incomplete.

[00:35:39] Speaker 05:
Is vacature the appropriate remedy, or is there something less than vacature required here?

[00:35:44] Speaker 00:
Something less than vacature is absolutely required here, Your Honor.

[00:35:47] Speaker 05:
And what would that be?

[00:35:49] Speaker 05:
Is that a remand from us to the district court to order something from Fish and Wildlife, or to the district court to take additional evidence, or can we just send this straight back to Fish and Wildlife and say, run the numbers on these things?

[00:36:02] Speaker 00:
You could remand to the Fish and Wildlife for further explanation.

[00:36:08] Speaker 00:
I think if the court were considering vacatur, then we would respectfully request that instead it remand to the district court for further briefing and argument about remedy so that the parties can present evidence about the disruptive consequences of vacatur.

[00:36:24] Speaker 00:
But if the court is disinclined to vacate and wants more explanation, for example, about the 46% issue,

[00:36:30] Speaker 00:
then you can remand for further explanation.

[00:36:32] Speaker 00:
It would be highly disruptive to industry to vacate and the rule provides important conservation benefits.

[00:36:41] Speaker 01:
Thank you.

[00:36:42] Speaker 01:
Thank you.

[00:36:43] Speaker 01:
Okay, we'll hear from Mr. Steen now.

[00:37:00] Speaker 04:
Thank you, Your Honors, for still allowing me some time.

[00:37:02] Speaker 04:
I appreciate it.

[00:37:04] Speaker 04:
Well, the benefit of being the intervener and going last is I can see how the issues have been delineated, so I'm just going to jump right in unless you have any questions you want to start with.

[00:37:11] Speaker 04:
But I'm going to start with this Level A issue, which is distinct.

[00:37:15] Speaker 04:
It goes to negligible impact.

[00:37:17] Speaker 04:
It does not go to the small numbers issue, which we haven't really talked that much about.

[00:37:20] Speaker 04:
I'm happy to answer questions about small numbers, but we've addressed it in the briefing.

[00:37:27] Speaker 04:
On level A, I think one of the first things to understand is that we're talking a lot about probabilities.

[00:37:32] Speaker 04:
We're focusing on a single metric of probabilities.

[00:37:35] Speaker 04:
And the plaintiffs have said, well, yeah, that probability makes sense because negligible impact refers to reasonably likely.

[00:37:41] Speaker 04:
The definition actually doesn't refer to take being reasonably likely.

[00:37:45] Speaker 04:
It says an impact resulting from the specified activity cannot be reasonably expected to and is not reasonably likely to adversely affect the species or stock through annual rates of recruitment or survival.

[00:37:59] Speaker 04:
So it's the impact that has to be reasonably likely.

[00:38:03] Speaker 04:
The service has to first determine what the impact is.

[00:38:06] Speaker 04:
this exercise of running the model and looking at all the various products of the model and looking at the qualitative information is so that the service can get a feel of what's the impact.

[00:38:18] Speaker 04:
And then it has to decide, is that impact reasonably likely to affect annual rates of recruitment or survival?

[00:38:24] Speaker 04:
And so it's not that take has to be reasonably likely, it's that the service has to determine the impact.

[00:38:29] Speaker 04:
Here they said, we're gonna determine the impact as being these types of take.

[00:38:34] Speaker 04:
As Your Honor said, level A, A1 and A2, and then there's level B. They didn't have to do any of that for the negligible impact determination, but they did.

[00:38:43] Speaker 04:
But I think that's a really important point, that service determining the impact, the standard that applies to that is not, is it reasonably likely?

[00:38:50] Speaker 04:
It's, did they act rationally?

[00:38:51] Speaker 04:
Did they explain this?

[00:38:53] Speaker 04:
Were they transparent?

[00:38:54] Speaker 04:
Did they disclose it?

[00:38:55] Speaker 04:
Did they explain what they did?

[00:38:56] Speaker 04:
And I would submit they did.

[00:38:57] Speaker 04:
The plaintiffs disagree.

[00:38:58] Speaker 04:
They think they should have focused on one metric,

[00:39:01] Speaker 04:
and only one metric, and that metric said, oh, it's probable, and so you had to conclude there's level A take.

[00:39:06] Speaker 04:
It's not what the service did, though.

[00:39:08] Speaker 04:
It ran the model, but I think with the model, the first thing we have to start with is the idiom, all models are wrong, some are useful.

[00:39:15] Speaker 04:
This model was definitely wrong, and the service acknowledged that in the sense that it dramatically overestimated the probabilities of take.

[00:39:25] Speaker 04:
So they explain that to ER124.

[00:39:29] Speaker 04:
They say very transparently, we evaluated the most impactful scenario.

[00:39:34] Speaker 04:
And then they gave many examples of how that would be.

[00:39:36] Speaker 04:
Like, for example, seismic survey, which under the model draws the greatest impact.

[00:39:41] Speaker 04:
They said, we know they're not going to occur all five years, but we're going to assume they occur every five years for purposes of running the model.

[00:39:48] Speaker 04:
So boom, that gets plugged into the model.

[00:39:49] Speaker 04:
That affects the result.

[00:39:51] Speaker 04:
They said, we have this really important road that a lot of trucks go on.

[00:39:55] Speaker 04:
And the way the model works is it just assumes that there's somebody in a facility, just somebody there, it's occupied.

[00:40:03] Speaker 04:
and a truck goes by the facility, and there could be polar bears in this area, just because it's occupied or just because a vehicle's there, it assumes a likelihood of take immediately.

[00:40:14] Speaker 04:
It doesn't assume what's going on.

[00:40:15] Speaker 04:
And so it said, OK, we have this road.

[00:40:17] Speaker 04:
We could have cars going, trucks going back and forth, could cause take.

[00:40:21] Speaker 04:
But there's another route that wouldn't cause take.

[00:40:24] Speaker 04:
But we're going to assume they use the road that would always cause take.

[00:40:26] Speaker 04:
Boom, that gets plugged into the model.

[00:40:28] Speaker 04:
And so at every point,

[00:40:30] Speaker 04:
they used the most conservative assumption in the model.

[00:40:33] Speaker 04:
They say they use the 99 percentile of probability of impact in the model.

[00:40:37] Speaker 04:
And so you have a model that's going to produce these likelihoods, OK, that's not reflective of what's really happening.

[00:40:43] Speaker 04:
And they acknowledge that.

[00:40:44] Speaker 04:
And that is one of the qualitative factors they considered.

[00:40:47] Speaker 04:
They said, we recognize that the model is the most impactful scenario.

[00:40:50] Speaker 04:
And that's one of the things we're considering when we're going to ultimately conclude what kind of impact is going to occur.

[00:40:57] Speaker 01:
What is the relationship between the level A and B categorizations and a negligible impact determination?

[00:41:06] Speaker 04:
The relevance of those the negligible impact is one they don't have to split them up, but it's really you have to go back to the definition is Does the impact have an adverse effect on annual recreate rates of recruitment or survival so level a This is out of the red down there now you're talking about the reg

[00:41:24] Speaker 04:
Right.

[00:41:24] Speaker 04:
Well, that's how they've defined it in the regulation.

[00:41:26] Speaker 04:
But in terms of in practice how they're using it, the reason they look at level A and level B for purposes of the negligible impact determination is they have different effects on a bear.

[00:41:36] Speaker 04:
So like level B harassment, for example, is behavioral harassment.

[00:41:40] Speaker 04:
The bear might run away from an activity.

[00:41:42] Speaker 04:
That's behavioral harassment.

[00:41:44] Speaker 04:
It's not removed from the population.

[00:41:46] Speaker 04:
That's it.

[00:41:48] Speaker 04:
Level A harassment, potential injury, could be a spectrum of things.

[00:41:51] Speaker 04:
That's why the service divided up into serious and non-serious.

[00:41:54] Speaker 04:
You could have non-serious injury that does not remove a bearer from the population.

[00:41:59] Speaker 04:
It doesn't create the risk of removing a bearer from the population.

[00:42:03] Speaker 04:
The service categorized it that way, I assume, because that has a different effect on the annual rate of recruitment or survival.

[00:42:10] Speaker 04:
Serious level A is something that's more serious.

[00:42:13] Speaker 04:
It could result in the death.

[00:42:14] Speaker 04:
It could result in removal of bear from the population.

[00:42:18] Speaker 04:
And so they considered that differently because that could have a different rate on annual rates of recruitment or survival.

[00:42:24] Speaker 01:
I guess the way I was conceiving of this is that these level A and level B are sort of categorizations that exist elsewhere that can be

[00:42:33] Speaker 01:
useful for examining negligible impact except potentially when they're not useful in which case you might make an adjustment.

[00:42:40] Speaker 01:
My understanding was that was what they had done here.

[00:42:42] Speaker 01:
It's not necessarily laid out in the most clear way, but that is how I was reading what the service was explaining in their decision.

[00:42:51] Speaker 04:
Yeah, I mean it's one way that you could do it.

[00:42:53] Speaker 04:
It's the way the service chose here.

[00:42:54] Speaker 04:
Ultimately they have to determine whether the total take has a negligible impact and

[00:42:58] Speaker 04:
They could have done that by lumping all take together, level A, level B, saying here's the total take, here's why we think it has a negligible impact.

[00:43:05] Speaker 04:
And they could have explained that.

[00:43:06] Speaker 04:
They could have said different types of the take have different types.

[00:43:09] Speaker 01:
Is this A1, A2 methodology something they've done before, or is this a maiden voyage on this approach?

[00:43:17] Speaker 04:
In my experience, I have not seen this before.

[00:43:20] Speaker 04:
The question was asked earlier, is serious injury something that is in the statute?

[00:43:23] Speaker 04:
It's not anywhere else in section 101A5.

[00:43:27] Speaker 04:
It does appear elsewhere in the Marine Mammal Protection Act.

[00:43:30] Speaker 04:
So for example, it applies to some of the provisions governing commercial fisheries.

[00:43:36] Speaker 04:
So looking at the types of impacts from fisheries, do you have something that's a serious injury, which the National Marine Fisheries Service has defined as something that's likely to result in a death.

[00:43:46] Speaker 04:
So it's not an uncommon term in the MNPA, but I haven't seen it used in this context before.

[00:43:52] Speaker 01:
Can you address the five years versus one year before you sit down?

[00:43:57] Speaker 01:
on the negligible impact analysis?

[00:43:59] Speaker 04:
On the, not the small numbers, but on... Not the small numbers.

[00:44:03] Speaker 04:
So getting back to my point about the models, they use the model.

[00:44:07] Speaker 04:
They have to look at the results of the model.

[00:44:09] Speaker 04:
But the model produced a mean.

[00:44:10] Speaker 04:
It produced a median.

[00:44:11] Speaker 04:
It produced a probability.

[00:44:12] Speaker 04:
It produced a confidence interval.

[00:44:13] Speaker 04:
The plaintiffs hone in on one of those.

[00:44:15] Speaker 04:
The service said, and they explained it.

[00:44:17] Speaker 04:
This is rational basis review.

[00:44:19] Speaker 04:
Did they explain it?

[00:44:20] Speaker 04:
They did explain it.

[00:44:21] Speaker 04:
They said, we think when the data are significantly skewed, like the data we have, we the service think the median is the most informative.

[00:44:30] Speaker 04:
And that's all they're required to do.

[00:44:32] Speaker 04:
That's the agency's explanation.

[00:44:33] Speaker 04:
The plaintiffs disagree with that, but that's the agency's explanation.

[00:44:37] Speaker 04:
They also did consider qualitative factors, recognizing that we've always done this qualitatively, so we can't ignore qualitative factors.

[00:44:44] Speaker 04:
The qualitative factor of the model being overly conservative, we have to take that into account.

[00:44:49] Speaker 04:
The qualitative factor of we didn't consider all mitigation measures in the model.

[00:44:52] Speaker 04:
Plaintiff's counsel is correct, they did consider

[00:44:55] Speaker 04:
the beneficial effects of flying surveys to detect polar bear dens in the model, they didn't consider any other mitigation measures in the model.

[00:45:02] Speaker 04:
And they recognized at two ER 140, two ER 145 that there are beneficial effects of mitigation they didn't take into account.

[00:45:11] Speaker 04:
They also recognized that there's never been an observed level A harassment in the history of this program decades of polar bears.

[00:45:18] Speaker 04:
And then that was something else that was relative.

[00:45:20] Speaker 04:
It was the service as the expert can take all of this information and make a conclusion.

[00:45:26] Speaker 04:
The plaintiffs might disagree, the court might disagree, but the question is, was that ultimately rational?

[00:45:32] Speaker 04:
And I would submit they explained it.

[00:45:33] Speaker 01:
I think we have your argument, so thank you very much for your presentation this morning.

[00:45:36] Speaker 01:
And we'll go ahead and hear rebuttal.

[00:45:50] Speaker 03:
Thank you.

[00:45:50] Speaker 03:
There are three points I'd like to hit on in rebuttal.

[00:45:54] Speaker 03:
The first is that the service's failure to consider level A take holistically is not harmless error, as the defendants seem to imply.

[00:46:01] Speaker 03:
The fundamental problem with the way the service broke out level A take and the way that it did is that, again, they didn't assess the impacts of level A take because they said it was so unlikely to occur, and they talk about this on page 124, volume 2 of the excerpt of record.

[00:46:18] Speaker 03:
And as a result, they only look at the impacts of level B, which is this potential to disturb on the population.

[00:46:25] Speaker 03:
So while the federal defendants have said it served no other purpose but informing the negligible impact determination, the records clear that it did in fact inform the service's determination that no level A take was expected either annually or over the entire course of the five years.

[00:46:43] Speaker 03:
And that played a role in the agency's ultimate findings.

[00:46:45] Speaker 03:
the service explains several times in the ITR that it is not considering impacts of level a take on the population specifically on volume 2 excerpt of record pages 102 125 and page 143 comment response 49 and The reason this matters is that even even assuming this non-serious level a harassment doesn't impact the

[00:47:08] Speaker 03:
rates of survival because the service defined it to be an injury that doesn't cause death.

[00:47:16] Speaker 03:
This court said in Natural Resources Defense Council v. Pritzker that even negligible impacts still have to be mitigated to the greatest extent possible.

[00:47:24] Speaker 03:
This is a fundamental precondition to the service allowing any take at all.

[00:47:29] Speaker 03:
So on remand, the service would have to consider whether it can issue an ITR if there is projected level A take,

[00:47:36] Speaker 03:
from these activities.

[00:47:37] Speaker 03:
And the crux of that is it would force the service to assess how to mitigate those impacts and ensure the least practical adverse impact.

[00:47:45] Speaker 03:
I would also note that, yes, Congress did use the word serious injury elsewhere in the MMPA.

[00:47:49] Speaker 03:
But as the Alliance explained in its brief, when Congress uses words in one section of a statute but omits them in others, it shows that Congress knew how to make that specification.

[00:47:58] Speaker 03:
And including it one place and excluding it elsewhere should be given meaning by the courts.

[00:48:04] Speaker 03:
I'd also just briefly touch on the fact of the five years being zero.

[00:48:10] Speaker 03:
Again, a roughly coin-tossed chance of there being a death of a cub every year over five years increases the probability greatly, and this is not technical, and I think Judge Bybee was asking some questions to get to that, but I think a reasonable person realizing that there's a 46% chance of death or deadly injury from an activity knows that

[00:48:34] Speaker 03:
that probability increases substantially when that activity is repeated five times in a row.

[00:48:39] Speaker 03:
For instance, if I had a 46% chance of dying on my way to work every day, I would be a lot more nervous going to work five days a week than I would one.

[00:48:50] Speaker 03:
And to touch on the point about the model being overly conservative, the service did note that the model was conservative, as Mr. Steen pointed out, and that's on page 124.

[00:49:00] Speaker 03:
But the service also repeatedly said, well, it also explained that the reason the model was conservative was because it was using the information that industry provided about the activities it was going to do.

[00:49:13] Speaker 03:
So conservative or not, it's based on the reality of the information that AOGA provided as to what it was going to be doing over five years.

[00:49:21] Speaker 03:
And the service also repeatedly stated in comment responses that it was not overestimating the potential for take.

[00:49:28] Speaker 03:
And that's in volume two, Excerpt of Record, pages 141 to 142 in response to comment 41, pages 148 to 49 in response to comment 83, and page 154 in response to comment 129.

[00:49:43] Speaker 03:
And regarding the comment that these oil and gas activities have gone on for decades without any problems for polar bears, that ignores that the service developed this quantitative model because it recognized that its prior findings and past reported take had actually underestimated take of denning cubs.

[00:50:02] Speaker 03:
And that new information showed impacts to denning bears were more significant than the service previously thought.

[00:50:08] Speaker 03:
And that's explained at volume two of our excerpt of record, page 139, pages 141 through 142, page 251, and page 257.

[00:50:18] Speaker 03:
And regarding level A take, as we pointed the court to earlier, at page 261, a study by the Service of Scientists does question whether any level A take of this population could be permitted.

[00:50:31] Speaker 03:
Consistent with the statute.

[00:50:32] Speaker 03:
So this is a really significant question that the service would need to consider on remand as to whether it could allow even level B harassment for these activities where level a take is essentially certain to occur and Unless the court has any further questions.

[00:50:47] Speaker 03:
I'll sit down Okay.

[00:50:49] Speaker 01:
Well, thank you to all counsel for the briefing and argument in this case this matter is submitted and we'll stand in recess until tomorrow morning and

[00:51:00] Speaker 02:
All right.