[00:00:00] Speaker 02:
You all are the cross-appellees, but you're gonna go first, is that the deal?

[00:00:07] Speaker 03:
No, we're the cross, my name is Tekla Hanson Young, I represent the federal defendants in the case, and we're cross, I think we are cross-appellants, I think we're, we may be labeled incorrectly as cross-appellants.

[00:00:19] Speaker 02:
Okay, we've got some varieties.

[00:00:20] Speaker 03:
Oh no, we're cross-appellants, we're appellants slash cross-appellants.

[00:00:23] Speaker 02:
Okay, I don't care who goes first, if you wanna go first, you can go first, it's not a problem.

[00:00:27] Speaker 03:
Our side appealed first.

[00:00:28] Speaker ?:
Okay.

[00:00:29] Speaker 02:
And you are Ms.

[00:00:30] Speaker 02:
Hanson Young, is that correct?

[00:00:32] Speaker 02:
Yes.

[00:00:32] Speaker 02:
Very well, please proceed.

[00:00:34] Speaker 03:
May it please the court, my name is Tekla Hanson Young, and I represent the National Marine Fisheries Service.

[00:00:39] Speaker 03:
I plan to share six minutes with Laura Wolf, who represents the state of Alaska, and two minutes with Douglas Steading, who represents the Alaska Trollers Association.

[00:00:47] Speaker 03:
I plan to reserve four minutes for rebuttal.

[00:00:49] Speaker 02:
Okay, so who's reserving the four minutes?

[00:00:51] Speaker 02:
You are?

[00:00:51] Speaker 02:
Me.

[00:00:52] Speaker 02:
Okay, very well, thank you.

[00:00:53] Speaker 03:
The district court committed reversible error here when it applied a presumption of vacator and separately assumed that vacator was warranted simply because the ESA and NEPA were violated.

[00:01:03] Speaker 03:
These errors contributed to the district court's failure to carefully consider the individual equities on duly discount the disruptive consequences of vacator of the incidental take statement that enabled Alaska fisheries to continue troll fishing.

[00:01:18] Speaker 03:
and the district court also overvalued the limited benefits of vacant or of the incidental take statement to southern resident killer whales.

[00:01:26] Speaker 03:
Conversely, the district court correctly found that leaving the prey increase program in place was warranted where the prey increase program was already providing benefits to killer whales and where the steps that could be taken, where there were steps that could be taken and where the agency was in fact taking those steps to mitigate impacts to threatened populations of listed salmon.

[00:01:48] Speaker 03:
On the first issue that we raised on appeal, that the district court erred in presuming vacater of the incidental take statement was appropriate.

[00:01:56] Speaker 03:
Vacater is an equitable remedy.

[00:01:58] Speaker 03:
As an equitable remedy, it is subject to ordinary equitable principles.

[00:02:02] Speaker 04:
So, counsel, I have two questions on that.

[00:02:06] Speaker 04:
You agree that our cases use the word presumptive, right?

[00:02:11] Speaker 03:
I would say some of them use the word presumptive.

[00:02:13] Speaker 03:
Yes.

[00:02:13] Speaker 04:
Some of them use the word presumptive.

[00:02:14] Speaker 04:
And the government has argued, and obviously we're a three-judge panel, but the government has argued that's inconsistent with the statute, right?

[00:02:23] Speaker 04:
That that's inconsistent with the law.

[00:02:25] Speaker 03:
That's correct.

[00:02:25] Speaker 04:
All right.

[00:02:26] Speaker 04:
So I have another statutory construction question for you.

[00:02:31] Speaker 04:
So looking at Section 706-2.

[00:02:37] Speaker 04:
that it says that the reviewing court shall hold unlawful and set aside agency actions found to be arbitrary and capricious.

[00:02:50] Speaker 04:
And the Supreme Court has instructed us, including recently, that shall means shall.

[00:02:57] Speaker 04:
And so again, that's not our precedent.

[00:03:02] Speaker 04:
So my question is, does the government think our precedent is wrong in a different way, i.e.

[00:03:10] Speaker 04:
it's wrong because the plain language of 706 says, if you find it,

[00:03:19] Speaker 04:
arbitrary and capricious, you shall hold it unlawful and set aside.

[00:03:25] Speaker 04:
Isn't that plain language very clear as to what we're required to do absent a statutory change by the Congress?

[00:03:32] Speaker 03:
Well, I have two responses to that.

[00:03:33] Speaker 03:
First of all, the government's position is that set aside doesn't mean vacate.

[00:03:37] Speaker 03:
So the court could take that path and understand set aside to mean shall put it to the side

[00:03:44] Speaker 03:
in while reviewing the agency action.

[00:03:49] Speaker 03:
In other words, not vacate.

[00:03:51] Speaker 03:
But even if the court doesn't go there, and it doesn't have to go there to find in the government's favor here, this court has in the Lamb case, which we cited in our briefs, acknowledged that shall doesn't always mean, shall is not always mandatory, and there are

[00:04:09] Speaker 03:
numerous cases that have interpreted the shall set aside as not being mandatory.

[00:04:15] Speaker 03:
There are some cases in the DC Circuit that have interpreted shall in a mandatory way, but the vast majority of cases understand that shall in 706 does not mean that a court must set aside unlawful agency action.

[00:04:30] Speaker 02:
just ask this question.

[00:04:31] Speaker 02:
As you know, the Chief Justice in a recent case dealing with APA and what is to be done when the court finds that it is improperly applied said, and I quote, that the DC Circuit had vacated cases, and he quotes, five times before breakfast.

[00:04:52] Speaker 02:
Basically, that from his perspective, I think Justice Kavanaugh said the same thing.

[00:05:00] Speaker 02:
That's their remedy.

[00:05:02] Speaker 02:
It seems to me you can fall back on the allied signal exceptions, and I think that's what you're asking us to do here.

[00:05:09] Speaker 02:
But do we agree that at least under the APA, vacator is the remedy if the regulation is incorrect?

[00:05:24] Speaker 03:
Well, three other justices have acknowledged that they are open to hearing from different courts of appeals whether set-aside does not mean vacate.

[00:05:33] Speaker 03:
This is an open question now, and no court, to my knowledge, has really looked at this from first principles.

[00:05:41] Speaker 03:
Ms.

[00:05:41] Speaker 06:
Hanson-Young, I guess short of us getting eight of our friends to show up here, maybe we should focus then on the allied signal piece of it.

[00:05:52] Speaker 06:
I guess an overarching question, since it is an equitable discussion, is,

[00:05:57] Speaker 06:
What are we to do about the two twists since the remedial decision?

[00:06:03] Speaker 06:
One is that our court has now stayed the vaguer of the incidental take statement.

[00:06:11] Speaker 06:
And two, the government, the service has represented that within four months' time, all of this may be moot because we'll have a new biological opinion that it represents

[00:06:23] Speaker 06:
will at least restart any controversy if not cure the issue.

[00:06:27] Speaker 06:
How do those enter into our equitable considerations of what we do going forward given the status quo is now so different and will change again in four months?

[00:06:41] Speaker 03:
I think they are relevant and I'm glad you brought that up.

[00:06:44] Speaker 03:
The agency is still on track to completing the remand by November 2024, so the remand period is

[00:06:52] Speaker 03:
was going to be short before, when the remedy was decided, and it is even shorter now.

[00:06:57] Speaker 03:
It's just a matter of months.

[00:06:59] Speaker 03:
At this point, the case isn't moot because we still have the, with absent the stay order, we would still have the district court's remedy order in place.

[00:07:06] Speaker 03:
So up until the agency issues new biological opinion, new environmental impact statement covering the challenged actions,

[00:07:15] Speaker 03:
this court should decide this case.

[00:07:19] Speaker 02:
But I... Isn't that almost quixotic?

[00:07:22] Speaker 02:
I mean, I don't know how long it would take to get an opinion out, but say it's two, three months or something like that, you're just an eyelash away from a new report that moots the whole thing.

[00:07:34] Speaker 02:
So what's the point of our deciding this matter in this short interim period?

[00:07:41] Speaker 03:
Well, if you're suggesting that the court simply wait until the end of November.

[00:07:47] Speaker 03:
As a practical matter, if the decision doesn't come out until after December 1st, that result would be fine with the federal defendants.

[00:07:56] Speaker 03:
We are not asking for a decision to be issued before December 1st of this year.

[00:08:00] Speaker 03:
We would essentially obtain the relief that we had sought, which is a stay of the remedy order.

[00:08:05] Speaker 06:
But could we decide it, assuming that you're on track with a November decision?

[00:08:09] Speaker 06:
Yes.

[00:08:10] Speaker 06:
How would we have a controversy to decide at that point?

[00:08:14] Speaker 03:
it would be moot, and we would likely, if things proceed the way that we expect them to proceed, of course I can't say for certain, because it would be pre-decisional, but if things proceed on track, we would likely file a motion to dismiss our appeal and the cross-appeal as moot, and then the court would have to decide that issue.

[00:08:32] Speaker 03:
Now I do still think there is some value to the court addressing these issues, because it's likely that on,

[00:08:42] Speaker 03:
when NIMS issues its new agency documents, it's likely that the conservancy will find fault with them.

[00:08:50] Speaker 03:
It generally does.

[00:08:52] Speaker 03:
And so we'll bring a similar lawsuit, and the same equities will arise.

[00:08:58] Speaker 04:
Let me ask you something about that.

[00:09:00] Speaker 04:
So I hope I have the numbers right here, and I apologize if I don't, is the last

[00:09:08] Speaker 04:
a declaration from Dr. Lacey, the Lacey 3 declaration.

[00:09:13] Speaker 04:
Do I have that right?

[00:09:14] Speaker 03:
I believe that's correct.

[00:09:15] Speaker 03:
Okay.

[00:09:15] Speaker 04:
So I'm looking at the Lacey 3 declaration.

[00:09:19] Speaker 04:
In the 12 months since the Lacey 2 declaration, there have been three deaths and no live births.

[00:09:26] Speaker 04:
The last live birth occurred in 2021.

[00:09:32] Speaker 04:
We would need to increase the Chinook prey availability by about 5% to stop the decline and that the path that the orcas are on now is certain extinction.

[00:09:48] Speaker 04:
Now, this is according to Dr. Lacy, assuming I have quoted his declaration correctly.

[00:09:56] Speaker 04:
Why is that not enough for us to uphold the district court's order that was stayed here by the motions panel?

[00:10:09] Speaker 03:
I would like to answer a question.

[00:10:11] Speaker 02:
I see I am eating into... You're eating into your time.

[00:10:14] Speaker 02:
I want you to answer my colleague's question and we'll give you a little extra time, but try to answer it quickly.

[00:10:20] Speaker 03:
Sure, absolutely.

[00:10:21] Speaker 03:
So the Lisi Declaration is just wrong.

[00:10:24] Speaker 03:
The bar declaration that we submitted, I direct the court to the bar declaration.

[00:10:28] Speaker 03:
I've read it.

[00:10:29] Speaker 03:
Okay, which addressed the Lacey Declaration.

[00:10:32] Speaker 03:
Lacey believed that fisheries in Alaska reduce prey by roughly 5% and assumed that there would be an equal amount of benefits to southern resident killer whales.

[00:10:41] Speaker 03:
That's an incorrect assumption to make.

[00:10:44] Speaker 03:
NIMS' calculations and the biological opinion took into account spatial and temporal information about where fish are and where killer whales are.

[00:10:55] Speaker 03:
and determined that operation of the fisheries will only reduce prey in coastal waters in winter where resident whales are by half a percent on average, and in inland waters in the summer where whales are by 1.8 percent, and determined that in conjunction with the operation of the pre-increase program that had been operating, allowing the fisheries to proceed on remand would not impact the whales.

[00:11:22] Speaker 03:
Other problem with the Lacey Declaration is that it didn't include two recent births from the killer whale population.

[00:11:28] Speaker 03:
And there's also inaccurate assumptions that Lacey has used, which is that there's a direct correlation or a precisely quantifiable correlation between prey abundance and killer whales when there are many other limiting factors on the killer whale population.

[00:11:44] Speaker 03:
that the agency is trying to address.

[00:11:46] Speaker 03:
So the district court didn't weigh any of those individual facts, didn't grapple with those issues, didn't make any factual findings, and simply said, well, I don't really know how much fish are going to increase for killer whales, but I think it's meaningful.

[00:12:01] Speaker 03:
And in light of the ESA errors and the important purposes the statute

[00:12:04] Speaker 03:
serves and this presumption of vacator, I'm just gonna vacate.

[00:12:08] Speaker 03:
But that didn't, the district court didn't actually look at the individual equities, which it really needed to do here, especially when there's such disruptive consequences that would flow from vacator of the incidental take statement.

[00:12:22] Speaker 02:
Okay, let's do this.

[00:12:25] Speaker 02:
We'll finish up, for now you'll have a rebuttal.

[00:12:27] Speaker 02:
When she comes back, we'll give her three minutes of rebuttal.

[00:12:30] Speaker 03:
Thank you.

[00:12:31] Speaker 02:
Now, if you'll reset the clock, please, for Ms.

[00:12:34] Speaker 02:
Wolfe for six minutes.

[00:12:35] Speaker 02:
We're getting confused with the clock here.

[00:12:37] Speaker 02:
So let's put her down for six minutes.

[00:12:39] Speaker 02:
That's what you're getting, right?

[00:12:41] Speaker 02:
Six minutes?

[00:12:41] Speaker 02:
Yes.

[00:12:42] Speaker 02:
All right.

[00:12:43] Speaker 02:
All right.

[00:12:43] Speaker 02:
Please proceed.

[00:12:44] Speaker 00:
Okay, good morning.

[00:12:45] Speaker 00:
I'm Laura Wolf representing the state of Alaska and the commissioner of the Alaska Department of Fish and Game Douglas Vincent Lang is here as well in court.

[00:12:54] Speaker 00:
The district court abused its discretion in effectively halting the Chinook troll fishery.

[00:13:00] Speaker 00:
This appeal turns on the equities, the equities which will be present

[00:13:05] Speaker 00:
the same equities or very similar equities when Wild Fish Conservancy sues again under the new 2024, November 2024.

[00:13:12] Speaker 02:
When you talk about it, you're talking about the allied approach, right?

[00:13:17] Speaker 00:
Yes.

[00:13:17] Speaker 06:
But I guess the starting point for the equities is the seriousness of the error.

[00:13:23] Speaker 06:
We might hope that the service doesn't make a serious an error in its new opinion.

[00:13:30] Speaker 06:
I guess maybe we should start with that.

[00:13:35] Speaker 06:
These were conceded to be serious errors.

[00:13:39] Speaker 00:
They were conceded to be errors.

[00:13:42] Speaker 00:
And I actually don't think you have to start with that.

[00:13:46] Speaker 00:
there are cases from this court saying even when errors are serious or substantive, we still look at the equities and the equities can control.

[00:13:54] Speaker 00:
So I actually would like to start with equities and then turn to the seriousness of the errors and what serious means.

[00:14:00] Speaker 00:
Not in the abstract, but what this court under the allied signal test has held what serious means.

[00:14:07] Speaker 00:
So as for the equities, the district court abused its discretion in weighing the equities without even defining the equities.

[00:14:16] Speaker 00:
The court made no factual findings about the extent of economic, social, and cultural harms except to say that there would be some economic harms.

[00:14:26] Speaker 00:
The court also made no findings about the benefits to whales except saying, without explanation, I think it would be meaningful, but I don't know how many fish are gonna get there, and I don't know what it's going to do, but I think that's meaningful because there are some fish.

[00:14:38] Speaker 06:
Can we maybe stipulate that there are serious economic harms on the equity side and talk about the second point, the environmental harms

[00:14:46] Speaker 06:
At what point in time should the district court have weighed the environmental equities given that you had, by the time of the remedies order, the hatchery program had gotten off the ground?

[00:15:01] Speaker 06:
It's probably not the right thing to talk about with fish, but that was functioning.

[00:15:07] Speaker 06:
Did the district court adequately consider the fact that the prey increase program was successful in its interaction with the incidental take provision?

[00:15:19] Speaker 00:
It didn't.

[00:15:20] Speaker 00:
It didn't consider it at all.

[00:15:21] Speaker 00:
So what we have here is a program where there is a net positive.

[00:15:24] Speaker 00:
number of increase of fish when you consider the Prey Increase Program.

[00:15:29] Speaker 00:
And it's not just the net positive impact of fish.

[00:15:31] Speaker 06:
Net positive even given the incidental take.

[00:15:34] Speaker 00:
Yes.

[00:15:35] Speaker 00:
Okay.

[00:15:36] Speaker 00:
So there, so there, the, when you look at the Alaska fishery and the Prey Increase Program together, there's a net positive increase in fish.

[00:15:44] Speaker 00:
But the two actually aren't the same, right?

[00:15:47] Speaker 00:
Because the pre-increase program is much more diverse in the portfolio of stocks.

[00:15:53] Speaker 00:
So instead of, if Alaska forgoes its fish, then most of the

[00:15:59] Speaker 00:
prey that is going to go to the killer whales who the killer whales want are Columbia Brights.

[00:16:04] Speaker 00:
That's the number that we take.

[00:16:06] Speaker 06:
And so that there's... And yeah, I think I appreciate all of that.

[00:16:09] Speaker 06:
Given that we have limited time, I want to try to focus you in a little bit more on... So the services response, and I know you're not the service, but the services response is that with respect to any deficiencies in the prey increase program, we've got that handled at a site-specific level, but there's not a lot of detail there.

[00:16:27] Speaker 06:
the resolution of that or the assurance that that will be resolved factor into the equities.

[00:16:34] Speaker 06:
Basically they're saying we don't, we're not going to fix it at a global level because that's not where it should be fixed.

[00:16:38] Speaker 06:
It should be fixed at the site level.

[00:16:40] Speaker 06:
How does that, where does that factor into the equities?

[00:16:43] Speaker 00:
So first of all, there is a lot of detail.

[00:16:46] Speaker 00:
And there might not have been a lot of detail in 2019.

[00:16:49] Speaker 00:
But by 2023, actually, there was quite a lot of detail.

[00:16:52] Speaker 00:
It's not just a declaration from a federal defendant.

[00:16:55] Speaker 00:
It's a declaration plus a ton of exhibits attached saying the who, what, where, when, why, what broodstock the fish are coming from, where, which hatcheries, how many, how much money is going into it, what the overhead was used for when there was overhead.

[00:17:08] Speaker 00:
There's a ton of information.

[00:17:09] Speaker 00:
It's not just a conclusory statement.

[00:17:12] Speaker 00:
By 2023, we know what is going on, and we also have Congress every single year appropriating money for the Prey Increase Program, which is just increasing the hatchery production, the hatcheries that have already had ESA and NEPA analyses done.

[00:17:30] Speaker 00:
We're not looking at a blank slate.

[00:17:36] Speaker 00:
that's come to this on a blank slate and say, oh, we're just going to create this brand new program without any environmental analysis.

[00:17:41] Speaker 00:
That's not what happened.

[00:17:43] Speaker 00:
And so I think that thinking about it like that makes us much more similar to, for instance, the Regan case or NRDC versus EPA, where you're looking at the disruptive consequences.

[00:17:54] Speaker 00:
And this is very temporary, right?

[00:17:57] Speaker 00:
And NRDC versus EPA, this court said,

[00:18:01] Speaker 00:
We're not going to disrupt, even though there can be, there's going to maybe environmental harm, maybe we're not going to disrupt for what, until a new document like months later comes out and here, you know, it's one year, four months later.

[00:18:16] Speaker 06:
I guess why should then the, your claim that the, certainly at the time of

[00:18:20] Speaker 06:
the remedy that the seriousness of the prey increase program error was mitigated.

[00:18:27] Speaker 06:
How does that then, you've talked about the overall level of fish, but kind of analytically, how does that inform then the incidental take remedy analysis?

[00:18:37] Speaker 00:
So you mean for NEPA documentation for the ITS?

[00:18:42] Speaker 06:
Right, right.

[00:18:43] Speaker 06:
In other words, there were two errors before the district court, that the district court was attempting to remedy and assess with respect to the equities.

[00:18:51] Speaker 06:
You've been talking about the success of the Pre-Increase Program.

[00:18:55] Speaker 06:
How does that crosswalk with respect to any impact on the take?

[00:19:00] Speaker 00:
So as far as analysis of the ITS,

[00:19:05] Speaker 00:
There's two parts of NEPA, which is a procedural statute.

[00:19:08] Speaker 00:
There's the public notice, and then there's also the actual analysis.

[00:19:13] Speaker 00:
NIMS is at the table at the treaty negotiations.

[00:19:17] Speaker 00:
NIMS is one of the players at the intranational treaty negotiations first before we even go to Canada.

[00:19:24] Speaker 00:
They look to see, is this take okay?

[00:19:26] Speaker 00:
Is this going to be compatible with the ESA?

[00:19:29] Speaker 00:
So that analysis is already, they're already consulting basically at that point.

[00:19:35] Speaker 00:
So it is, again, this is not where we're operating on a blank slate.

[00:19:39] Speaker 00:
I see that I have gone over my time.

[00:19:41] Speaker 00:
I'd just like to make one last point if I can.

[00:19:45] Speaker 00:
Quickly, please.

[00:19:46] Speaker 00:
We did, yes, there's economic harms, but this is not just economic harms.

[00:19:53] Speaker 00:
There's also huge social and cultural harms because there are multiple declarations that say, if we can't fish and earn, if half of our income is lost, we'll probably not fish at all.

[00:20:07] Speaker 00:
So it forces people into poverty or choosing to leave these very small rural communities.

[00:20:13] Speaker 00:
And that's huge cascading effects.

[00:20:15] Speaker 00:
It's not just harm to some fishermen.

[00:20:18] Speaker 00:
It's remote, isolated communities.

[00:20:21] Speaker 02:
OK.

[00:20:22] Speaker 02:
Thank you very much.

[00:20:24] Speaker 02:
So Ms.

[00:20:25] Speaker 02:
Say it.

[00:20:25] Speaker 02:
Steading, is that correct?

[00:20:28] Speaker 02:
It's correct, Your Honor.

[00:20:28] Speaker 02:
Please.

[00:20:28] Speaker 02:
So let's reset the clock for two minutes.

[00:20:36] Speaker 01:
Good morning.

[00:20:37] Speaker 01:
Douglas Steading on behalf of the Intervenor Defendants Alaska Trollers Association.

[00:20:41] Speaker 01:
May it please the court.

[00:20:43] Speaker 01:
The trawlers intervened in this matter years ago to protect their way of life.

[00:20:47] Speaker 01:
It picks up on where the state of Alaska is at.

[00:20:49] Speaker 06:
Mr. Steddy, maybe because you have such little time, you can focus in on this.

[00:20:53] Speaker 06:
What do we do with the fact that we're dealing with a pretty short time horizon now for any relief?

[00:20:59] Speaker 06:
And as I understand it, we're kind of now between fishing seasons as well.

[00:21:03] Speaker 06:
So the harms on both sides are significantly reduced, perhaps.

[00:21:10] Speaker 06:
Which way should that cut?

[00:21:12] Speaker 06:
In other words, it's unlikely if there's not a fishing season going on that one will be missed between now and November.

[00:21:18] Speaker 06:
Should that factor into the analysis?

[00:21:23] Speaker 01:
Very good question.

[00:21:24] Speaker 01:
I think it gets to the allied signal weighing the consequences of a disruption that may itself be changed.

[00:21:31] Speaker 01:
In this instance, it highlights the importance of

[00:21:36] Speaker 01:
the need for the fisheries to continue to maintain the way of life.

[00:21:39] Speaker 01:
The Council for the State of Alaska just talked about that.

[00:21:42] Speaker 01:
And there's ample evidence in the record on that point from multiple declarants.

[00:21:46] Speaker 01:
And yes, the fishing season, it's actually, it's not over.

[00:21:50] Speaker 01:
There's another component to it.

[00:21:52] Speaker 01:
There is a winter fishing season that is the next highest fishing season in terms of- Let me follow up on my colleague's question.

[00:22:00] Speaker 04:
Yes.

[00:22:01] Speaker 04:
And I apologize if my factual understanding is incorrect.

[00:22:06] Speaker 04:
But it's my understanding that the summer season opens once in July and may or may not reopen still in the summer.

[00:22:17] Speaker 04:
Again, I apologize if I have that wrong.

[00:22:20] Speaker 04:
Is that correct?

[00:22:22] Speaker 04:
So where are we vis-a-vis the 2024 summer season?

[00:22:27] Speaker 04:
Is there going to be a reopening or are we done?

[00:22:30] Speaker 01:
That's to be determined.

[00:22:33] Speaker 01:
The numbers from the first part of the opening have not determined whether or not there will be a reopening on the- Okay.

[00:22:39] Speaker 04:
And if there is, it would be August, September?

[00:22:43] Speaker 04:
That's correct.

[00:22:44] Speaker 04:
And so by the end of September, there won't be any more no matter what.

[00:22:48] Speaker 04:
But what you're telling me factually now is there still could be some August slash September.

[00:22:54] Speaker 01:
That's correct, Your Honor.

[00:22:56] Speaker 01:
And I see I'm out of time, so.

[00:23:00] Speaker 01:
Thank you.

[00:23:00] Speaker 02:
Do either of my colleagues have additional questions?

[00:23:03] Speaker 02:
Thank you.

[00:23:03] Speaker 02:
No, thank you.

[00:23:04] Speaker 02:
Thank you very much.

[00:23:05] Speaker 02:
All right, so is it Knutson?

[00:23:07] Speaker 02:
Knutson.

[00:23:07] Speaker 02:
Very good.

[00:23:09] Speaker 02:
Mr. Knutson.

[00:23:15] Speaker 05:
Good morning.

[00:23:16] Speaker 05:
May it please the court.

[00:23:17] Speaker 05:
My name is Brian Knudsen.

[00:23:18] Speaker 05:
With me at council table is Emma Bruden, and we're here today on behalf of the plaintiff below Wild Fish Conservancy.

[00:23:25] Speaker 05:
Today I intend to focus on the remedy issues, how the district court did not abuse its discretion in issuing the presumptive remedy of voicature for the incidental take statement, and how the court did abuse its discretion in withholding the presumptive remedy of voicature for the prey increase program.

[00:23:41] Speaker 05:
I don't intend to address the additional merits issue that we address in our briefs, but if the court has questions, I'm happy to answer them.

[00:23:46] Speaker 02:
I do have this question.

[00:23:48] Speaker 02:
I assume you acknowledge that the allied signal exception to the vacature exists and is a valid, shall I say, doctrine?

[00:23:57] Speaker 05:
That's correct, Your Honor.

[00:23:59] Speaker 02:
Okay.

[00:24:00] Speaker 02:
I think you would probably also agree that there are lots of small indigenous villages that would be

[00:24:08] Speaker 02:
hugely and adversely impacted by the application of the district court's initial order regarding the taking.

[00:24:16] Speaker 02:
Do you agree with that?

[00:24:17] Speaker 05:
I don't have any reason to dispute it.

[00:24:19] Speaker 05:
I don't have any facts to dispute it.

[00:24:20] Speaker 05:
But I do want to emphasize that there were important limitations on the court's vacatur order.

[00:24:25] Speaker 05:
It vacated the take authorization only to the extended authorized take of southern resident killer whales and Chinook salmon, resulting from the commercial troll fisheries of Chinook.

[00:24:38] Speaker 05:
And so it does not apply to non-commercial fisheries.

[00:24:41] Speaker 05:
It does not apply to subsistence or treaty fisheries.

[00:24:44] Speaker 05:
And it does not apply to recreational fisheries, only commercial fisheries.

[00:24:48] Speaker 05:
It does not apply to coho, sockeye, pink, other fisheries.

[00:24:52] Speaker 06:
Okay, yeah.

[00:24:53] Speaker 06:
So, well, I suppose it's disputed whether that's a $10 million impact, $29 million.

[00:25:00] Speaker 06:
By talking in financial terms, we don't intend to derogate at all the critical cultural and community interests here.

[00:25:10] Speaker 06:
But you've got some significant economic impact on one side.

[00:25:16] Speaker 06:
We talked a little bit about the Lacey Declaration and others.

[00:25:19] Speaker 06:
When we're talking about a period, even at the time of the remedy of

[00:25:24] Speaker 06:
maybe two years, and the discussions about the killer whale's fate, those studies are being done to project things over a century.

[00:25:38] Speaker 06:
How are we supposed to weigh that?

[00:25:40] Speaker 06:
It's not clear in terms of amortizing the harm or benefit to the populations of whales at the issue here.

[00:25:48] Speaker 06:
that there may be even one whale gained or lost due to this while we know on the other side there's jobs at stake.

[00:25:59] Speaker 06:
What are we supposed to do with that under the allied signal analysis?

[00:26:02] Speaker 05:
Sure, Your Honor, thank you.

[00:26:04] Speaker 05:
So I think the starting point is the statute, as the court identified earlier.

[00:26:08] Speaker 05:
The statute directs that the court shall set aside unlawful agency action.

[00:26:12] Speaker 05:
So that's the presumptive remedy.

[00:26:16] Speaker 05:
If the court wants to deviate from the presumptive statutory remedy under allied signal, it certainly can consider the equities.

[00:26:25] Speaker 05:
This court has consistently

[00:26:27] Speaker 05:
held, looking to Section 7 of the Endangered Species Act, that the Endangered Species Act is different, that when it comes to protecting threatened endangered species, Congress has determined that the equities weigh in favor of protecting the species over economic interests.

[00:26:43] Speaker 06:
I think consistent with this court's... But isn't that double counting one of the factors in allied signal?

[00:26:49] Speaker 06:
Once we're at allied signal, we're looking at the seriousness of the legal error, whether it violated the Endangered Species Act or NEPA.

[00:27:00] Speaker 06:
Then the disruption is a separate inquiry.

[00:27:04] Speaker 06:
If we include, as it seems like the district court might have done, the values inherent in avoiding the legal error,

[00:27:12] Speaker 06:
in the equities of the disruption, are we not improperly double counting the first step of it?

[00:27:19] Speaker 05:
I'm not sure what you mean by double counting, Your Honor.

[00:27:21] Speaker 06:
I look at the... Well, we're supposed to consider the legal error in the first one, and you say, well, the ESA says that the legal error under the ESA is really, really bad and disruptive.

[00:27:30] Speaker 06:
I see.

[00:27:30] Speaker 06:
But then that's bringing it into the second step of the equities analysis, which doesn't seem to be what Allied Signal is about.

[00:27:36] Speaker 05:
Well, I understand that that's not what Allied Signal is about.

[00:27:39] Speaker 05:
The legal principle that I'm referring to, it stems from the Supreme Court's interpretation of Section 7 of the Endangered Species Act in the TVA v. Hill case, where the Supreme Court determined that

[00:27:52] Speaker 05:
when evaluating remedies under the Endangered Species Act, Congress has struck the priorities, the equities, in favor of protecting threatened endangered species through a principle of institutionalized caution.

[00:28:05] Speaker 05:
That principle should apply equally when considering vacature under the Administrative Procedure Act.

[00:28:09] Speaker 06:
Okay, and at which step?

[00:28:11] Speaker 06:
At the first step in terms of the seriousness of the error or the second step in terms of the level of disruption?

[00:28:15] Speaker 05:
I think it goes to how the court weighs the economic consequences.

[00:28:20] Speaker 02:
the the the amount of weight that the court gives to the the disruptive economic consequences of the locket sure night I feel like I've been through this record before when I first came on the court it was the it was the spotted owl the northern spotted owl and everything was an uproar and

[00:28:37] Speaker 02:
whole bunch of towns and schools in Oregon and Washington and Idaho were absolutely devastated.

[00:28:44] Speaker 02:
Well, it turns out it was the horned owl that was killing them, and now the service is going to kill all the horned owls to save what's left of the spotted owl.

[00:28:54] Speaker 02:
It's a typical problem that courts, we deal with sledgehammers, not scaffolds.

[00:29:00] Speaker 02:
And what I wrestle with in this case, I totally get it.

[00:29:05] Speaker 02:
that the ESA is a very, very, very important statute and that preserving killer whales is a very important aspect of that.

[00:29:13] Speaker 02:
But when we talk about weighing reports that don't agree, as pointed out by my colleague, you've got an expert that says one thing, the world is going to end.

[00:29:24] Speaker 02:
You've got the other side that says, no, no, that's totally wrong.

[00:29:27] Speaker 02:
And the district court is kind of balancing it.

[00:29:29] Speaker 02:
We have to look at what the district court says.

[00:29:31] Speaker 02:
But we have all these fallouts.

[00:29:34] Speaker 02:
And I guess my question to you for the Conservancy is, doesn't the allied signal exception

[00:29:43] Speaker 02:
not only encourage, but almost require us, particularly when we're dealing with some of these endangered indigenous communities, to really keep the equities in mind.

[00:29:54] Speaker 02:
Now, obviously, the wells are super, super important, but the government says, they're fine, they're doing well.

[00:30:00] Speaker 02:
You say, not so much, but don't we have to proceed with great caution in this?

[00:30:06] Speaker 02:
Because this is not a science, it's an art.

[00:30:10] Speaker 02:
Do you agree with that?

[00:30:10] Speaker 05:
I do, Your Honor.

[00:30:11] Speaker 05:
I will say, under this Court's precedent applying the allied signal factors, the Court, given the statutory mandate, the starting point of the statute that the Court shall set aside unlawful agency action, this Court has found remand without vacatur appropriate in limited circumstances.

[00:30:29] Speaker 05:
Generally speaking, only when the errors were

[00:30:32] Speaker 05:
relatively minor or technical in nature and the consequences of vacature substantially outweighed what were otherwise minor technical errors or where vacature itself would result in more environmental harm than leaving the agency action in place.

[00:30:46] Speaker 05:
And that's not the case here.

[00:30:48] Speaker 05:
Here you have extensive substantial violations of both section seven of the Endangered Species Act and a wholesale violation of the National Environmental Policy Act.

[00:30:57] Speaker 05:
And I'm unaware of any case where this court

[00:30:59] Speaker 05:
has left in place an agency action that was adopted with such extensive violations of Section 7 and a complete failure to do NEPA.

[00:31:06] Speaker 06:
Mr. Knutson, with respect to the prey increase program, that was underway and at least more successful than could have been anticipated under the analyses that were at issue at the liability phase.

[00:31:26] Speaker 06:
And the district court

[00:31:28] Speaker 06:
considered that.

[00:31:30] Speaker 06:
I understand you disagree with the district court's consideration of that.

[00:31:35] Speaker 06:
Shouldn't the district court have factored that in to the incidental take portion two?

[00:31:40] Speaker 06:
In other words, my sense, I think both parties believe that there is an integrated relationship between both of these programs, and you're both saying, well, you can't just consider one.

[00:31:54] Speaker 06:
The district court only considered one.

[00:31:56] Speaker 06:
It didn't consider the success of the Prey Increase Program on the take side of it.

[00:32:02] Speaker 06:
Was that error?

[00:32:04] Speaker 05:
So I agree that the district court did not discuss the implementation of the Prey Increase Program in the Voigtner section of its remedy order.

[00:32:14] Speaker 05:
There remains to be no plan, no analysis showing how the Prey Increase Program will actually benefit southern resident killer whales.

[00:32:22] Speaker 05:
And so we have that was one of the original errors that the district court initially found that there was no definite plan showing that this federal funding program that was going to fund increase hatchery programs would actually result in any net benefit to southern residents because increasing hatchery production reduces the productivity of wild population.

[00:32:40] Speaker 06:
But that was that was an analysis done back at the 20 back in 2022 by 2023.

[00:32:47] Speaker 06:
There's more information and then aren't we allowed to consider

[00:32:51] Speaker 06:
the likelihood that even if the error is serious, the agency can cure it, particularly when we've got a 2024 timeline to do so.

[00:33:01] Speaker 05:
Yeah.

[00:33:01] Speaker 05:
So the point I was trying to make is that error, that deficiency remains, that serious violation remains.

[00:33:06] Speaker 05:
There is no plan showing how this pre-increase program will benefit Southern residents.

[00:33:11] Speaker 05:
Instead, what the agency has been doing is funneling money into hatchery programs that it thinks already have ESA or NEPA coverage.

[00:33:18] Speaker 05:
an increasing hatchery production at those hatchery programs without any sort of demonstration on how that's going to actually produce more prey for southern residents.

[00:33:26] Speaker 05:
And so there remains to be no plan showing how there's going to be a net benefit.

[00:33:31] Speaker 06:
So is the, are you saying then that even with the 2024, the November revised opinion coming out, that

[00:33:44] Speaker 06:
is not set up to cure the errors with respect to, I mean, you haven't seen it yet, but that's not even designed to cure these earlier errors with respect to the prey increase program?

[00:33:56] Speaker 05:
You know, we don't have the answer to that.

[00:33:57] Speaker 05:
We haven't seen that.

[00:33:58] Speaker 05:
What we have not seen yet is any sort of analysis showing how the prey increase program will benefit.

[00:34:02] Speaker 06:
Do you agree that there are more fish under the analysis now with both together than there would be without?

[00:34:11] Speaker 05:
I would not necessarily agree that there's more fish in the river because the again hatchery increased hatchery just just dumping more hatchery fish into a water body does not necessarily produce more adults returning to marine waters where the southern residents are present.

[00:34:26] Speaker 04:
So, Kenza, let me ask you a related, somewhat related question, which is troubling to me as an obvious non-expert.

[00:34:38] Speaker 04:
So I'm going through, for example, Dr. Lacy's third declaration.

[00:34:44] Speaker 04:
I'm looking at paragraph eight.

[00:34:47] Speaker 04:
And he has some statistical analysis and talks about, we can estimate there's about a 6% reduction in prey available.

[00:34:55] Speaker 04:
Caused by the fishery as a whole and then he he says Understandably but with considerable uncertainty Around this number and this is something about this whole case that is troubling to me as a non-expert deciding

[00:35:15] Speaker 04:
There is a lot of uncertainty around everything here in terms of is it going to help the whales?

[00:35:24] Speaker 04:
Is it going to hurt the whales?

[00:35:27] Speaker 04:
And all we know for sure, I think, is that closing some of the fisheries is absolutely going to cause harm.

[00:35:37] Speaker 04:
to inhabitants of Alaska and their various subsistence and cultural practices.

[00:35:47] Speaker 04:
How do we as judges, in your view, factor in the known harm

[00:35:53] Speaker 04:
with the enormous uncertainty for both aspects of what we're dealing with here on a, in relative terms, a very small population that we're looking at, which again, it's small so it is in more danger of extinction, but it's small so looking at how something with regard to Chinook is going to affect that 74 population or whatever the number is now,

[00:36:21] Speaker 04:
I find it very difficult to come out on your side, given the uncertainty about the numbers, but convince me why I should be less troubled.

[00:36:33] Speaker 05:
Okay, Judge Bennett.

[00:36:35] Speaker 05:
First of all, with respect to the economic harm, we certainly, as the district court did, recognize that there will be meaningful economic impacts.

[00:36:42] Speaker 05:
I also think there's a significant amount of speculation with respect to the economic impacts.

[00:36:48] Speaker 05:
Their position is that if they're unable to harvest Chinook, well, maybe nobody will fish anything.

[00:36:52] Speaker 05:
But a large, half and even sometimes over half of the economic

[00:36:56] Speaker 05:
value of the troll fishery is from COHO, and so a significant portion of the troll fisheries at issue are unaffected by the remedy order, and it's large speculation as to the extent of the economic impact.

[00:37:10] Speaker 05:
With respect to the environmental harm,

[00:37:14] Speaker 05:
You know, I looked to Dr. Giles' declaration.

[00:37:17] Speaker 05:
You know, she's a marine biologist that focuses strictly on the southern resident killer whales.

[00:37:21] Speaker 05:
And, you know, her testimony is the condition is really bad and it's getting worse.

[00:37:26] Speaker 05:
These whales are continuing to die, and it's gotten worse during the stay.

[00:37:30] Speaker 05:
There's been no live bursts since and including 2023.

[00:37:34] Speaker 05:
Sorry, there's one, but the whale died within a month.

[00:37:37] Speaker 05:
And there's been multiple late-stage pregnancies that did not produce calves.

[00:37:42] Speaker 05:
So the condition is getting worse.

[00:37:43] Speaker 05:
And as Dr. Giles explained, these whales need prey now.

[00:37:48] Speaker 06:
Mr. Clinton, I guess that points out the change status quo.

[00:37:55] Speaker 06:
I mean, we've now got to stay in place here.

[00:37:58] Speaker 06:
And we've got a four-month run between now and when there'll be a new opinion that

[00:38:03] Speaker 06:
May raise other issues and may bring new challenges, but would May moot the current action.

[00:38:10] Speaker 06:
What's your view on?

[00:38:11] Speaker 06:
our best Approach, I'm sure everyone would like to win today I'll tell you that's probably not going to happen in terms in terms of the timeline So how are we to deal with the fact that we've got to stay in place and we've got mootness on the horizon in November What what would you have us do?

[00:38:29] Speaker 05:
Sure, so I think we'll come out of this argument requesting that the court promptly lift the stay issued by the motions panel as a beginning request.

[00:38:39] Speaker 05:
But I'll also emphasize that we do not share the confidence that the government has that new decisions will be out in November.

[00:38:47] Speaker 05:
we've experienced long delays in NOAA's ability to get ESA and NEPA documents for both fisheries and particularly with hatcheries.

[00:38:57] Speaker 05:
We've seen 10, 15 year delays in their ability to approve hatchery programs under the Endangered Species Act and NEPA.

[00:39:03] Speaker 05:
And there's been numerous other events in the last 12 to 18 months that lead us to believe that there might be substantial delay in those approvals.

[00:39:11] Speaker 05:
And so again,

[00:39:13] Speaker 06:
focusing on the institutionalized caution, we think if there may be delays, that the benefit of the doubt should be given to the species and not to the hopes that NOAA, the gambling, that NOAA will get legal and new documents out in the next- I hope it's not viewed as gambling, but are you, so from your perspective, you're willing to take the chance on getting an answer from us sooner rather than later, as opposed to holding the services feet to the fire to get a new opinion out?

[00:39:40] Speaker 05:
certainly with respect to I think that our preference would be to provide prey as soon as possible for the southern resident killer whale well that's assuming you know the results of the but you you would rather get an opinion now then then or a decision now

[00:39:56] Speaker 06:
um, um, before the, the opinion rather than continuing to monitor the situation.

[00:40:02] Speaker 05:
I think, yeah.

[00:40:03] Speaker 05:
So let me just step back.

[00:40:04] Speaker 05:
So in the, you know, in the, in the Reagan case that the center for environment, uh, the center for food safety, the Reagan case, there was a failure to consult in that case and the agency remanded without vacature, but mandated that EPA complete consultation within the statutory deadline of 180 days.

[00:40:20] Speaker 05:
Here, in contrast to that with the more recent migrant, the Migrant Clinicians Network case, where EPA said it could not complete consultation within the 180 days, but it still requested remand without voiciature.

[00:40:33] Speaker 05:
And this court said, we're not going to issue a blank check remand without voiciature and allow you to delay consultation indefinitely.

[00:40:42] Speaker 05:
And so our position is that it is an abuse of discretion to allow the agency to

[00:40:47] Speaker 05:
continue implementing the action without any deadline.

[00:40:51] Speaker 05:
So our preference would be a deadline.

[00:40:52] Speaker 05:
Our preference would have been 180 days from the merits ruling, where the agency knew it had a duty to consult with them.

[00:41:01] Speaker 02:
If we could rely entirely on Dr. Lacey and the other experts, and they speak with absolute certainty, I would be more persuaded by what you're saying.

[00:41:16] Speaker 02:
But as my colleague pointed out, Dr. Lacey basically said, this is my best guess.

[00:41:21] Speaker 02:
That's what it is.

[00:41:25] Speaker 02:
Maybe not all the experts that way.

[00:41:26] Speaker 02:
I don't know how somebody can absolutely tell how many calves are born.

[00:41:31] Speaker 02:
They must be really busy people.

[00:41:35] Speaker 02:
But I don't know whether that's a guess as well.

[00:41:38] Speaker 02:
What I'm struggling with is,

[00:41:40] Speaker 02:
Is this hard science or this is the best we can do?

[00:41:44] Speaker 02:
And do we basically pull down the pillars of Hercules in the hopes that the building can somehow be saved thereafter if it turned out there was not a problem?

[00:41:56] Speaker 05:
Judge Smith, I'm glad you brought me back to this issue.

[00:41:59] Speaker 05:
So there are multiple data points that the court looked at, and the district court did look at multiple data points when evaluating this issue.

[00:42:09] Speaker 05:
I think that maybe the best data point is what happened before the lawsuit.

[00:42:13] Speaker 05:
And before the lawsuit, NOAA issued a biological opinion.

[00:42:16] Speaker 05:
And NOAA's incidental take statement found that these fisheries are likely to result in harm constituting take of southern resident killer whales.

[00:42:23] Speaker 05:
It found that these fisheries are likely to or may increase the risk of poor body condition and nutritional stress.

[00:42:29] Speaker 05:
So the NOAA found that these fisheries are going to cause take before they were sued.

[00:42:33] Speaker 05:
They've, you know, they've sort of... I'll say that again.

[00:42:35] Speaker 02:
I'm sorry.

[00:42:35] Speaker 02:
The fishery for what, did you say?

[00:42:37] Speaker 05:
So this is at 6 ER 1206.

[00:42:40] Speaker 05:
NOAA, in the challenge biological opinion, found that these fisheries are likely to result in some level of harm constituting take of southern resident killer whales.

[00:42:49] Speaker 05:
That's the agency's official position, not its post hoc litigation position, its official position.

[00:42:55] Speaker 06:
So I guess to come back to the time that's passed since the equities were last evaluated, you're still asking us to vacate the prey increase program.

[00:43:06] Speaker 06:
where things had changed that were unaccounted for even at the point of the remedial decision.

[00:43:13] Speaker 06:
Things have changed more with respect to the, now with the stay.

[00:43:17] Speaker 06:
How are we supposed to decide what to do and decide the equities now when I think everyone concedes that the increased program, whether good or bad, is well underway.

[00:43:29] Speaker 06:
How would we know from where we stand now what the equities

[00:43:34] Speaker 06:
say as to that program in relation to the incidental take program when we're two years down the road.

[00:43:42] Speaker 05:
Well first I think it's important to emphasize the the serious violations underlined the the adoption of the prey increase program.

[00:43:48] Speaker 05:
This is an enormous federal funding program adopted without any NEPA and without a consulting on whether it's gonna jeopardize threatened Chinook salmon.

[00:43:56] Speaker 06:
But that's gonna be but but the service is attempting to cure that by November you agree or at least attempting.

[00:44:02] Speaker 05:
Yeah, again, I would take issue of whether or not the agency is curing it because the agency is committed through this ongoing process to adopt that program.

[00:44:11] Speaker 05:
And NEPA requires the agency to meaningfully consider alternatives.

[00:44:15] Speaker 05:
And here, the agency has issued incidental take statements legally reliant on this prey increase program.

[00:44:21] Speaker 05:
And so I question whether a new NEPA analysis is actually going to remedy this violation.

[00:44:27] Speaker 05:
I'd also take issue with the

[00:44:30] Speaker 05:
with the success of this program.

[00:44:32] Speaker 05:
And so this is another significant error that the district court made in declining to vacate this program.

[00:44:37] Speaker 05:
The district court found that in 2022, the program released 19 million smolts, which is pretty close to the 20 million target.

[00:44:44] Speaker 05:
It's undisputed that the actual number of fish released from the pre-increase program was 8 million that year, and that the difference of 11 million was released under an entirely different program implemented by the state of Washington that's either gonna continue or not continue

[00:44:58] Speaker 05:
irrespective of what the district court did below or what this court does here with the pre-increase program.

[00:45:02] Speaker 05:
Okay.

[00:45:03] Speaker 02:
Thank you very much for your argument.

[00:45:04] Speaker 02:
Thank you, Your Honor.

[00:45:05] Speaker 02:
Appreciate it.

[00:45:06] Speaker 02:
So, Ms.

[00:45:08] Speaker 02:
Hanson-Young, you have three minutes.

[00:45:10] Speaker 02:
Rebuttal.

[00:45:15] Speaker 03:
It is undisputed that whales are not going to go extinct in the next four months.

[00:45:20] Speaker 03:
Nobody has made that argument.

[00:45:22] Speaker 03:
On the other side, the short timeframe remaining would, if the stay were to be lifted, that would irreparably harm Southeast Alaskan communities because there would be considerable uncertainty about how they could continue to fish.

[00:45:36] Speaker 03:
Many communities and individuals are unable to pivot to other jobs.

[00:45:40] Speaker 03:
People have to plan several months in advance before they can go out and fish.

[00:45:44] Speaker 03:
So it would throw that whole community into considerable uncertainty.

[00:45:49] Speaker 03:
So you asked a question earlier about, well, how does the short timeframe affect it when it minimizes the harms on both sides?

[00:45:55] Speaker 03:
No, only on the killer whale side of the equities.

[00:45:59] Speaker 06:
How do we have any assurance that it's four months?

[00:46:03] Speaker 03:
The government can commit that it will issue the biological...

[00:46:08] Speaker 03:
you know, barring unforeseen circumstances, the government will issue... Well, that's kind of what this whole case is about, isn't it?

[00:46:14] Speaker 03:
True, true, but then we... That's certainly true.

[00:46:17] Speaker 03:
I mean, if there were some... I can't even imagine what would happen that would derail it, but by all accounts, the government is on track to issue this by the end of November.

[00:46:28] Speaker 03:
And, I mean, you've asked about, well, what do we make about the short timeframe?

[00:46:32] Speaker 03:
I mean, it is...

[00:46:33] Speaker 03:
It is difficult because it could arguably be a waste of the panel's time to write a decision that will become moot.

[00:46:40] Speaker 03:
by the agency's own issue.

[00:46:43] Speaker 04:
So, counsel, the government would, for example, have no objection if, say, we were going to rule before then, and at least in some aspects rule in the government's favor, but the case would be continuing because there wouldn't be moodness at that point to say in our order.

[00:47:02] Speaker 04:
But if the government doesn't do it on time, we instruct the district court to grant relief to plaintiffs.

[00:47:08] Speaker 03:
I wouldn't agree to such a broad grant relief to plaintiffs.

[00:47:13] Speaker 03:
I think reinstatement of the partial vacator or something like that.

[00:47:18] Speaker 03:
But the government is not concerned that it will not meet the end of November deadline.

[00:47:25] Speaker 04:
So the government would not have an objection if we were going to hypothetically rule, as I've said.

[00:47:30] Speaker 04:
to put in there an instruction to the district court as to what to do, to do some things in plaintiffs' favor, if the government doesn't meet the timetable that you say that barring some unforeseen catastrophe, the government's going to meet.

[00:47:45] Speaker 03:
Correct.

[00:47:46] Speaker 03:
That's correct.

[00:47:47] Speaker 03:
And courts frequently do that when deciding not to vacate government action.

[00:47:52] Speaker 03:
We know that there can be a lot of delays, and we want to make sure there won't be delays, so we are going to delay vacater until X date.

[00:48:01] Speaker 03:
And the district court didn't do that here.

[00:48:03] Speaker 03:
That would have been a more narrow version of vacater remedy that it could have done, but didn't do.

[00:48:10] Speaker 03:
We would not object so long as any instruction to the district court would be post

[00:48:17] Speaker 03:
December 1st.

[00:48:19] Speaker 03:
Again, I don't think that's necessary because we have committed to completing the documents by then, but if that would give the court some assurances.

[00:48:28] Speaker 02:
If time is up, let me ask, do either of my colleagues have additional questions?

[00:48:32] Speaker 02:
I know we could talk about this forever.

[00:48:33] Speaker 02:
Certainly.

[00:48:34] Speaker 02:
We appreciate counsel's argument.

[00:48:36] Speaker 02:
The case just argued is submitted and I just want to add for the record that my law clerk who's in the audience has conformed me that killer whales are dolphins, so there you go.

[00:48:49] Speaker 02:
The case just argued is submitted and the court stands adjourned for the day.