[00:00:01] Speaker 00: Our last case on calendar today is Wild Earth Guardians versus United States Forest Service. [00:00:08] Speaker 00: This is the one that has two lawyers on one of the sides. [00:00:10] Speaker 00: 23-35352. [00:00:12] Speaker 00: Each side has 20 minutes in this case. [00:01:04] Speaker 05: Good morning, Your Honors, and may it please the Court. [00:01:06] Speaker 05: My name is Andres Johansen. [00:01:07] Speaker 05: I represent the Appellants in this matter. [00:01:09] Speaker 05: With the Court's leave, I'd like to reserve five minutes for rebuttal. [00:01:13] Speaker 05: I'd like to address two main points this morning, and then answer any questions the Court may have. [00:01:17] Speaker 05: The first point I'd like to address is the central question on appeal, whether the Forest Service's 1995 national policy on the use of bait on national forests falls within the broad ambit of agency action under the Endangered Species Act. [00:01:30] Speaker 05: And second, I'd like to address new information that has come to light over the intervening three decades concerning the wider geographic distribution of grizzly bears, the undisputed significant overlap between grizzlies where grizzlies now occur, where they did not occur in 1995 in Idaho and Wyoming, and instances of grizzlies being shot over bait in areas where they were not present in 1995. [00:01:55] Speaker 05: But first, I'd like to address, again, agency action. [00:01:58] Speaker 05: When the Forest Service sat down at the table in 1995 to consider what it would do about the question of baiting on national forests, it considered four alternative approaches. [00:02:07] Speaker 05: The first that it considered was to revert to its historical practice of using special use permits, issuing them and otherwise prohibiting the practice on national forests in Wyoming. [00:02:17] Speaker 05: That was the paradigm between the 1960s and the early 1990s. [00:02:20] Speaker 05: It rejected that approach. [00:02:23] Speaker 05: Second, it considered relying only on state regulations to regulate the practice. [00:02:28] Speaker 05: Under that approach, as recognized at the time, no action be required by the Forest Service. [00:02:33] Speaker 05: It also rejected that approach. [00:02:35] Speaker 05: It rejected it precisely because it would deprive the Forest Service of its opportunity to take action to protect federal interests such as grizzly bears. [00:02:43] Speaker 00: Sorry, you said no action would be required. [00:02:47] Speaker 00: You mean no regulation by the federal government would be required. [00:02:51] Speaker 00: But if they had chosen that one, do I understand correctly you would still be calling that agency action? [00:02:58] Speaker 05: So I think that one could see that as agency action. [00:03:02] Speaker 05: In the alternative analysis the agency did, there's first alternative two, which I was describing just now, and also alternative four. [00:03:09] Speaker 05: And I think it depends on what you look at as the status quo, right? [00:03:12] Speaker 05: So at that moment in time, in 1995, when the agency was considering whether to adopt the national policy or take any of the other alternatives, the status quo at the time was that ban on baiting in Wyoming. [00:03:22] Speaker 05: No baiting was allowed. [00:03:24] Speaker 05: So to revert to that practice of allowing the special use permits, that would have been not retaining the status quo at the time. [00:03:32] Speaker 00: Sorry, sorry, I was asking about option two. [00:03:34] Speaker 00: It was option two where they would do nothing and the states would be in control that I thought you said that wouldn't be action, but I think maybe I misunderstood what you meant because I think you would call that action, wouldn't you? [00:03:46] Speaker 05: So I think that that would be action because at that moment in time, when it considered the alternatives, the status quo was that there was a blanket ban in Wyoming on baiting. [00:03:53] Speaker 05: So it would have lifted that prohibition and reverted to its historical practice. [00:03:57] Speaker 05: So I don't think that it would have been agency action. [00:03:59] Speaker 05: Wait, you do or do not think? [00:04:01] Speaker 05: I'm sorry, do not think it would be agency. [00:04:03] Speaker 05: I'm sorry, it would be agency action because it would be reverting to that historical practice that was not in effect at the time because of the interim ban. [00:04:10] Speaker 05: I'm sorry, did I answer your question? [00:04:11] Speaker 00: Well, I think you said different things. [00:04:14] Speaker 00: Am I right that your position is that if they had chosen option two, that would count as agency action for review under the Endangered Species Act? [00:04:22] Speaker 05: Yes, I do think it would. [00:04:24] Speaker 05: Yes. [00:04:26] Speaker 03: And that's because once the agency has a policy that in some way restricts the activity, the decision to have no policy whatsoever in your view counts as action. [00:04:46] Speaker 05: I think it does. [00:04:47] Speaker 05: If you look at the situation on the ground in 1995, when the Forest Service considered these alternatives, a hunter seeking to use bait could not do so in Wyoming. [00:04:56] Speaker 05: It was prohibited from doing so by the blanket ban. [00:04:59] Speaker 05: Lifting that prohibition, reverting to its historical practice of issuing special use permits, that would have then allowed that hunter to obtain a special use permit. [00:05:08] Speaker 05: It changed the situation on the ground. [00:05:10] Speaker 00: Sorry, you're going back to option one, aren't you? [00:05:12] Speaker 00: Isn't it option one that had the special use permits and option two was not regulating? [00:05:18] Speaker 00: I think we're still asking about option two. [00:05:21] Speaker 04: And I think option two is the one they didn't choose, so I would still like to hear three and four at some point. [00:05:26] Speaker 05: Of course. [00:05:27] Speaker 05: To be clear, alternative one was to revert to special use permits in Wyoming. [00:05:32] Speaker 05: Alternative two would be to rely purely on state regulation, to regulate baiting on national forests. [00:05:40] Speaker 05: It would require nothing on the part of the forest service. [00:05:45] Speaker 05: The fourth alternative that the agency considered was to retain the status quo in 1995. [00:05:52] Speaker 05: And it rejected that approach because it would leave in place the existing ban. [00:05:56] Speaker 05: And it would, excuse me, it rejected that approach because it would not provide consistent national policy on the use of bait. [00:06:05] Speaker 05: So it did none of those things. [00:06:06] Speaker 05: Instead, the Forest Service decided to lift its ban on baiting in Wyoming. [00:06:12] Speaker 05: And to do something new, to authorize states to regulate the use of bait subject to mandatory federal oversight and safeguards, including closure orders if a conflict with ESA listed species ensued. [00:06:24] Speaker 05: So that was an affirmative and discretionary decision by the Forest Service to lift its ban and to authorize the states to regulate the practice. [00:06:35] Speaker 05: for the first time in history that it adopted that approach of this sort of concurrent jurisdiction, if you will, over the question of bait on national forests, where yes, the states may in the first instance regulate the practice. [00:06:48] Speaker 05: They may authorize it as Wyoming and Idaho have done. [00:06:51] Speaker 05: But it was always going to be subject now to federal oversight, to monitoring, mandatory monitoring, I would add. [00:06:57] Speaker 05: and to mandatory closure orders, if necessary, to protect Christmas. [00:07:01] Speaker 04: Hasn't that always been the situation? [00:07:03] Speaker 04: I mean, my understanding was that historically that the states regulated hunting, but hunting on national forest service lands [00:07:14] Speaker 04: was always subject to the sovereign's prerogatives. [00:07:17] Speaker 04: Whether they decided to allow the states to provide the rules consistent with hunting on state property is one way of approaching it. [00:07:27] Speaker 04: But the discretion to regulate this, I thought it had always been there. [00:07:31] Speaker 04: Why is this a change in policy? [00:07:33] Speaker 05: So I think what differs with the national policy is that it adopted a framework. [00:07:37] Speaker 05: The Forest Service adopted this framework whereby there was a mandate to conduct monitoring, to watch the situation on the ground unfold, to see if federal intervention would be necessary to protect grizzlies or other federal interests, and to intervene. [00:07:52] Speaker 05: And it sets forth this framework that cabins the agency's discretion, what sort of factors would it consider in deciding whether a closure order was necessary. [00:08:01] Speaker 05: So in that context, [00:08:04] Speaker 00: Are you here today because you're upset that within this framework, they have not taken what you call the new information and taken action within the framework? [00:08:14] Speaker 00: Or are you saying something was wrong with the choice of this framework? [00:08:18] Speaker 05: No, to be clear, we're not challenging the national policy, the framework itself. [00:08:21] Speaker 05: Ultimately, we're taking issue with the fact that the Forest Service has not done what it said it would do under the national policy, which is to act to protect grizzlies as necessary when there are instances of grizzlies being shot. [00:08:33] Speaker 00: But when you talk about how there needs to be re-evaluation, like you're triggering, re-triggering the, sorry, what is the word? [00:08:44] Speaker 00: Re-consultation, thank you. [00:08:46] Speaker 00: Triggering re-consultation, would the re-consultation be to discuss the national policy? [00:08:52] Speaker 00: Because that wasn't that what the consultation was about, what policy to adopt. [00:08:56] Speaker 00: And if you're re-initiating that, wouldn't we be back to reconsidering the policy? [00:09:01] Speaker 00: Because today now it sounds like you're talking about something within the policy instead of re-evaluating the policy. [00:09:07] Speaker 05: So I think what re-initiation of consultation would look like would be the Forest Service and the Fish and Wildlife Service sitting down for the first time since 1995, considering what is the situation on the ground? [00:09:17] Speaker 05: Where are grizzlies present? [00:09:18] Speaker 05: Where is baiting allowed? [00:09:20] Speaker 05: And what is the effect of allowing baiting in those locations on grizzlies? [00:09:25] Speaker 05: So grizzlies are now present in locations where they were not present in 1995. [00:09:30] Speaker 03: But then based on that sitting down and thinking about all those things, [00:09:35] Speaker 03: Would they then say, we need to have something other than the national policy or would they, or do you want them to say, you know, within the policy, you know, the bait is inconsistent with the forest plan or the state laws conflict with federal laws, we now understand it or one of those provisions? [00:09:54] Speaker 05: So the outcome of consultation would not necessarily be a revision of the national policy. [00:09:58] Speaker 05: The consultation is a procedure between the agency [00:10:02] Speaker 05: excuse me, the action agency here at the Forest Service and the Fish and Wildlife Service to inquire whether this action that is taken, the national policy, whether that is likely to adversely affect grizzly bears and if so whether it's likely to jeopardize their continued existence. [00:10:16] Speaker 05: Now if the finding of the first question is affirmative and the finding of the second question is affirmative, that would then mean that the national policy cannot be, it cannot continue to be adopted. [00:10:25] Speaker 05: It would require [00:10:26] Speaker 00: We want them to reconsider the national policy. [00:10:28] Speaker 05: We want them to consider the effects of the national policy and make sure that it's still consistent with the Endangered Species Act, because if it is not, then it cannot be allowed to continue. [00:10:37] Speaker 05: We don't know whether it's consistent or not. [00:10:38] Speaker 05: I mean, the fact is that the agencies have not looked at this question since 1995, and so much has changed since then in terms of where it goes. [00:10:45] Speaker 03: But in order to have standing, there has to be some potential for some concrete action that will be taken at the end of this case if you win, right? [00:10:56] Speaker 03: I think you've now said that the concrete action would be revisiting the national policy and putting in place some restrictions that do not exist and cannot exist within the current framework of the national policy. [00:11:13] Speaker 03: Is that right? [00:11:15] Speaker 05: Yeah, so for purposes of standing, that is, I think, the inquiry, whether there is a possibility that the agency would reach a different outcome had it complied with the procedures required by law. [00:11:25] Speaker 05: And here, those procedures are reinitiation of consultation. [00:11:28] Speaker 05: So certainly, the outcome could be that there is a finding that the national policy is likely to adversely affect Grizzlies on account of where Grizzlies are now present and the wider geographic distribution of Grizzlies. [00:11:42] Speaker 05: And an instance of, excuse me, of instances of actually, of grizzlies actually being shot over bait, which the Fish and Wildlife Service considered only a remote possibility of occurring at the time. [00:11:55] Speaker 03: You only get to the reconsultation requirement if, among other things, the 1995 policy was action that triggered consultation in the first place, right? [00:12:09] Speaker 03: And so going back to that question, how do you reconcile your view that this was action with our decision in Matejko? [00:12:19] Speaker 05: Yes, Your Honor. [00:12:20] Speaker 05: I think that Matejko is actually very instructive for this court for all the reasons that is distinguishable here. [00:12:26] Speaker 05: So in Matejko, as the court is aware, this court held that BLM's acquiescence to stream diversions on land that BLM managed was not agency action, because there the private parties had held vested rights of way under an 1866 law. [00:12:41] Speaker 05: And there, BLM did not change regulatory frameworks concerning that activity. [00:12:46] Speaker 05: It did not issue an interim blanket ban, any sort of ban as the Forest Service had done here between 1993 and 1995. [00:12:54] Speaker 05: It did not issue closure orders. [00:12:57] Speaker 05: It did not wait for a state to adopt regulations that it then deemed sufficient before in fact transferring that permitting authority and relinquishing it and allowing states to regulate in its stead as the Forest Service has done here. [00:13:10] Speaker 05: And BLM had made no commitment to monitoring the status quo on the ground, the situation on the ground. [00:13:15] Speaker 04: Council, we emphasized time and again in Matejko [00:13:21] Speaker 04: that it requires some kind of affirmative action. [00:13:25] Speaker 04: So what in your view is the affirmative action that was taken in 1995? [00:13:29] Speaker 05: I think the affirmative action the Forest Service took in 1995 was to lift its ban on baiting in Wyoming and to authorize states, to affirmatively authorize states to regulate this practice. [00:13:42] Speaker 05: In 1994, states could not have because that ban was- And they were affirmatively authorizing? [00:13:46] Speaker 04: What in the law [00:13:48] Speaker 04: suggest that the Forest Service has to authorize this? [00:13:53] Speaker 05: In 1994, prior to the national policy being adopted, Wyoming could not have regulated specifically the practice of baiting because there was a blanket ban on effect on national forests in Wyoming. [00:14:05] Speaker 05: Yeah, but that's just Wyoming. [00:14:07] Speaker 05: That's true. [00:14:07] Speaker 05: It's not true of Idaho. [00:14:09] Speaker 05: That's true, Your Honor. [00:14:10] Speaker 05: I don't think that in any way diminishes it being agency action, though. [00:14:14] Speaker 05: Certainly, even if it was only a subset of Wyoming, [00:14:17] Speaker 05: The fact is there was an area at the time where the practice was prohibited, and the Forest Service lifted that ban in 1995, and I think that that itself constitutes agency action. [00:14:29] Speaker 04: But with respect, for example, with respect to Idaho, from Idaho's perspective, there was nothing that the Forest Service did. [00:14:37] Speaker 04: Nothing changed anything. [00:14:39] Speaker 05: So I think it actually did change with respect to Idaho as well because it adopted this new framework where there was federal oversight obligation to monitor the practice and to issue closure orders as necessary to protect federal interests like grizzly bears. [00:14:53] Speaker 05: So I think for two separate reasons, I think there was agency action in 1985. [00:14:57] Speaker 04: And the framework itself is agency action, even if the agency never does anything under the framework. [00:15:03] Speaker 05: I think that's correct, Your Honor. [00:15:04] Speaker 05: And that's why we're here, because it didn't do anything under the framework. [00:15:08] Speaker 05: There have been instances of Grizzlies being shot over bait, and the Forest Service has in fact not re-initiated consultation as it was contemplated in 1995 that it would do. [00:15:21] Speaker 03: And I was gonna ask that the second point you made as to why it's action, the sort of continued oversight and possibility of closure orders and all that, that's not really essential to your view of why it's action because in answer to Judge Friedland's question at the very beginning, [00:15:39] Speaker 03: You said that if they had just done nothing at all and had, or if they had said we were going to have zero policy, that that would still be action, right? [00:15:46] Speaker 03: So the ongoing monitoring and potential for ongoing oversight of what the states are doing is, in your view, not really a factor. [00:15:59] Speaker 03: makes it action, or not a necessary one. [00:16:02] Speaker 05: Now, if I said it quite that way, I apologize. [00:16:05] Speaker 05: To be clear, if the Forest Service had truly done nothing, if there had not been a lifting of a ban, if there had been no ban in effect, no lifting of a ban, no framework for monitoring and intervention as necessary to protect grizzly bears, well, I think that would be an entirely different case. [00:16:19] Speaker 05: That would look a lot more like Matejko at that point. [00:16:21] Speaker 03: Well, and so that suggests then that Matejko would have come out differently [00:16:28] Speaker 03: if before the BLM policy there, that there had been some different BLM policy. [00:16:36] Speaker 03: Is that right? [00:16:38] Speaker 05: I think that would be a different case, certainly. [00:16:41] Speaker 05: I think the outcome in Miteshkot turned in part on the fact that there was no history of a change in regulation. [00:16:49] Speaker 05: BLM had not regulated those diversions. [00:16:51] Speaker 05: It had not monitored them. [00:16:52] Speaker 05: It had not committed itself to monitoring them. [00:16:54] Speaker 05: It had not adopted a framework for [00:16:57] Speaker 05: managing them or issuing any kind of order to the underlying, affecting the underlying activity, the aversions in that case. [00:17:06] Speaker 05: I think for all those reasons, you know, that Miteshko is the paradigmatic case in the circuit of agency action for all those reasons. [00:17:13] Speaker 05: Everything the BLM did not do there. [00:17:16] Speaker 00: Can I ask you about the new information? [00:17:18] Speaker 00: So let's say you get past this issue and there is agency action. [00:17:21] Speaker 00: Let's just hypothesize that for a moment. [00:17:24] Speaker 00: What is the new information that triggers the reconsultation duty here? [00:17:29] Speaker 00: Because it doesn't seem like one new bear being born could be enough. [00:17:32] Speaker 00: So what causes something to be enough to be new information? [00:17:36] Speaker 05: So I think I would actually push back a little bit on the notion that one bear being shot is not enough. [00:17:41] Speaker 00: I think that it actually could be- No, I said one bear being born. [00:17:44] Speaker 00: I mean, it can't just be any fact in the world that happens. [00:17:47] Speaker 00: So what is it that is enough information here? [00:17:50] Speaker 05: Certainly, so a few things. [00:17:52] Speaker 05: First of all, the first bear to reach the Bitterroot ecosystem since 1946, and the Fish and Wildlife Service has recognized the importance, the critical importance of the Bitterroot ecosystem to the recovery of the species, that it really cannot meaningfully occur without a robust population in the Bitterroot ecosystem. [00:18:10] Speaker 05: The first grizzly to reach that ecosystem since 1946 was shot over bait. [00:18:15] Speaker 05: I think that itself is new information. [00:18:17] Speaker 05: The agencies did not consider that that was a likely possibility at the time. [00:18:22] Speaker 00: They did anticipate that it is possible that baiting could cause a grizzly bear to be shot. [00:18:29] Speaker 05: And they understood that that would require initiation of consultation. [00:18:33] Speaker 05: They were considered a remote possibility of it occurring, and they understood that that would then require initiation of consultation. [00:18:38] Speaker 05: So it's that, it's the fact that there have been instances of Grizzlies being shot. [00:18:41] Speaker 05: They're too undisputed in the record. [00:18:43] Speaker 00: It does seem like the policy, some of the language said that. [00:18:46] Speaker 00: So it is interesting, because they did say if a Grizzly bear was shot, that would trigger reconsultation. [00:18:51] Speaker 00: That hasn't happened, I gather. [00:18:53] Speaker 00: But I didn't understand your lawsuit to be coming here and saying, [00:18:57] Speaker 00: the national policy hasn't been implemented the way it was intended. [00:19:01] Speaker 00: Instead, it seemed like you were saying we need to have consultation again about the national policy itself. [00:19:08] Speaker 00: But maybe you're shifting that today. [00:19:10] Speaker 05: No, I don't think that we're shifting it. [00:19:12] Speaker 05: I think it's two different ways of looking at the same question. [00:19:14] Speaker 05: It's whether, what has happened since 1995 in terms of Grizzlies, in fact, being shot over bait, whether the expanded range of Grizzlies since then, whether that constitutes new information requiring re-initiation of consultation. [00:19:29] Speaker 05: So the fact that there has not been re-initiation of consultation, that is, since the gravamen of our lawsuit, it's seeking to compel [00:19:38] Speaker 05: re-initiation of consultation as required. [00:19:42] Speaker 00: Okay, the national policy, the whole goal here of the endangered species act is to help the grizzly bears do better, right? [00:19:48] Speaker 00: So the policy is trying to have a system that will help them do better. [00:19:53] Speaker 00: They're doing better, they're expanding in their territory. [00:19:56] Speaker 00: So now you say, okay, they're in more territory, that's new information, we need re-consultation. [00:20:01] Speaker 00: If you get your re-consultation, then a year from now, when they're doing even better, do you think they need to re-consult again? [00:20:06] Speaker 00: Is it just all the time, endless? [00:20:08] Speaker 00: What is the limit here of this new information duty? [00:20:12] Speaker 05: I think if the agencies re-initiate consultation, as was required by the Endangered Species Act, and they consider the current trajectory of the population [00:20:20] Speaker 05: They consider the fact that baiting is now allowed in Idaho and Wyoming and that grizzlies are in fact being shot over bait in those states. [00:20:28] Speaker 05: If that continues to occur, I don't know that that would be new information anymore in the future. [00:20:33] Speaker 05: The fact is that it was not considered likely at the time in 1995. [00:20:37] Speaker 05: There was no projection forward of, you know, we anticipate the population will expand to these areas where they were not present historically. [00:20:43] Speaker 05: So it is new information now and what may be new information in the future is somewhat speculative. [00:20:50] Speaker 05: But I think it's absolutely, it animates the question of what the agency would consider whenever it initiates consultation. [00:20:58] Speaker 04: Council, what effect, if any, are we supposed to give to the Forest Service determination that it was not agency action in 1995? [00:21:07] Speaker 04: and its request to Fish and Wildlife that it withdraw its letters from 1995, and Fish and Wildlife's acquiescence in that. [00:21:18] Speaker 05: I see that I'm out of time. [00:21:18] Speaker 05: May I briefly answer? [00:21:19] Speaker 00: Keep answering the questions as long as we're still asking. [00:21:22] Speaker 05: Thank you. [00:21:23] Speaker 05: So the district court didn't reach the question of whether the rescission decision was lawful. [00:21:28] Speaker 05: And I think that, you know, [00:21:30] Speaker 05: There would need to be a proceeding on that question. [00:21:34] Speaker 05: I don't think that, I mean, it is ultimately the same question of whether or not there's agency action because of the justification that the Forest Service has. [00:21:41] Speaker 04: Right. [00:21:41] Speaker 04: Do we have any duty to defer here? [00:21:43] Speaker 04: And it's interesting because we have two agencies that have agreed. [00:21:46] Speaker 04: on this, it does feel a little collusive. [00:21:51] Speaker 04: So I'm sure we'll have some questions for the government here. [00:21:54] Speaker 04: But what effect are we supposed to give this when Fish and Wildlife also concludes that there was no agency action and is willing to withdraw its letters? [00:22:03] Speaker 05: So I would emphasize that it was a determination made after litigation was filed and that I believe the post hoc rationalization as the district court found, I don't think it is entitled to deference for that reason, that it was a post hoc rationalization adopted in the context of litigation. [00:22:18] Speaker 05: And it's ultimately the legal question before the court, whether there was agency action. [00:22:22] Speaker 05: I don't think that the court owes any deference to the agency in answering that legal question, which is ultimately the question of this case before the court. [00:22:30] Speaker 00: And if, okay, if you can get past the idea that this was agency action and then there's this new information question, do you think we should figure out if there's new information or should that be remanded to the district court because the district court never considered it? [00:22:43] Speaker 00: What do you think is supposed to happen if you get that far? [00:22:46] Speaker 05: So I think that the appropriate outcome, if your honor rules in our favor, is that the district court's decision be set aside and the agencies be ordered to re-initiate consultation and to evaluate the new information under the Endangered Species Act and see whether it rises to the level that now it's likely to adversely affect determination or potentially a jeopardy of determination. [00:23:08] Speaker 05: Those are questions that are committed to the Fish and Wildlife Service by law, but I think that the new, whether there's new information here, I think that it's properly for this court to answer. [00:23:19] Speaker 00: Okay, we've taken you over your time, but I'll still give you three minutes for rebuttal, so let's hear from the other side. [00:23:33] Speaker 01: Good morning, Your Honors. [00:23:35] Speaker 01: Amy Collier on behalf of the federal defendants. [00:23:37] Speaker 01: With me at council table is Travis Jordan for the state of Wyoming and Owen Moroney for the state of Idaho. [00:23:43] Speaker 01: I plan to speak for 15 minutes and reserve five minutes for Mr. Jordan. [00:23:47] Speaker 01: So as this court has recognized, Section 7 of the Endangered Species Act requires federal agencies to ensure that any action they authorize, fund, or carry out will not jeopardize a listed species. [00:24:01] Speaker 01: This court has recognized in Karuk Tribe that this Section 7 consultation duty arises only when an agency affirmatively authorizes funds or carries out the underlying activity. [00:24:13] Speaker 01: Section 7 reflects Congress's concern about agencies creating collateral effects to listed species by actions that they affirmatively undertake. [00:24:23] Speaker 01: As this court has recognized in Matejko, it does not apply to agency inaction, it does not apply to unexercised authority to act, and it does not apply to the actions of non-federal actors. [00:24:36] Speaker 01: But really that is all that appellants challenge here today. [00:24:39] Speaker 01: The Forest Service's policy of not regulating a hunting practice, specifically the placement of bait to hunt any resident game on Forest Service land. [00:24:49] Speaker 01: and instead letting states carry out their traditional role of regulating hunting practices within their borders. [00:24:57] Speaker 00: In Matejko, there was no regulation of these waterways, and then the agency basically announces, we're just gonna continue not regulating these waterways. [00:25:07] Speaker 00: Here, the other side at least is saying, you had closure orders, and then now you announce a policy where you won't have closure orders, so there's actually a difference, and that makes this not controlled by Matejko. [00:25:18] Speaker 00: So what is your response to that? [00:25:19] Speaker 01: Certainly, so I think there's a little bit of confusion about what the state state of the policy or the forest services activity was before 1995. [00:25:27] Speaker 01: In every state, except Wyoming, the Forest Service permitted states to decide whether or not to regulate the placement of bait, including the placement of bait for black bear hunting. [00:25:38] Speaker 01: The Forest Service's regulations since the early 1980s have exempted non-commercial hunting activities from any requirement to obtain a special use permit. [00:25:48] Speaker 00: That might be a good argument that in Idaho we're under Matejko, but Wyoming is part of this. [00:25:53] Speaker 00: Certainly. [00:25:54] Speaker 00: Why isn't the change in Wyoming enough to be different than Matejko? [00:25:58] Speaker 01: So I think the clarification here is that it was not necessarily a statewide rule in Wyoming that on every national forest somebody needed a special use permit. [00:26:08] Speaker 01: It was some forests in Wyoming that were requiring special use permits. [00:26:12] Speaker 01: And then as the Forest Service realized this was inconsistent with its regulations, it decided to bring Wyoming into line and there were a number of cases filed against the Forest Service. [00:26:23] Speaker 01: during which time they implemented these sort of prohibitions pending the development of a policy. [00:26:29] Speaker 01: First it was region two in Wyoming just for black bear baiting and then more broadly for the development of the national policy which would apply more broadly. [00:26:38] Speaker 00: It sounds like you're saying, I mean it's a little unclear what the status quo was, but we have a period of special use permits, then we have a period of closures which I think you just sort of blamed on litigation. [00:26:47] Speaker 00: But either way there was federal regulation and after this national policy there is not. [00:26:52] Speaker 00: Correct? [00:26:53] Speaker 01: Correct. [00:26:54] Speaker 01: I would say that it was a spotty regulation beforehand in Wyoming, but I think it's important again to go back to the statute itself, the statute, and Congress was clear that the Section 7 consultation duty does not apply to any time an agency takes any sort of action. [00:27:11] Speaker 01: It doesn't apply to any sort of decision made by the agency. [00:27:15] Speaker 01: It applies to actions that the agency [00:27:17] Speaker 01: authorizes funds and carries out. [00:27:20] Speaker 00: So how do you distinguish Environmental Defense Center versus Bureau of Ocean Energy Management? [00:27:24] Speaker 01: Certainly. [00:27:25] Speaker 01: So in that case, I think the context was entirely different. [00:27:29] Speaker 01: That was a series of oil leases in the Outer Continental Shelf in an area that the federal government exclusively regulates and that Congress has directed the federal government to regulate and the agencies have set up these regulatory schemes with a very detailed four part [00:27:46] Speaker 01: leasing program from leasing to development or production to development. [00:27:52] Speaker 01: And so in that case, the agency had already issued leases to these entities and it was deciding whether or not to allow a new type of technology on leases that it was already issuing and regulating. [00:28:03] Speaker 00: And so I think the distinction- As I understand it, the agency was saying, we're not going to regulate fracking. [00:28:08] Speaker 00: I mean, isn't that case, the premise of it is the agency is announcing it will not regulate? [00:28:14] Speaker 01: I think the way this court framed it in that case particularly was that it was the agency approving this technology and approving this technology on its leases. [00:28:23] Speaker 01: So I don't think it was just that the agency is saying it wasn't gonna regulate it at all. [00:28:28] Speaker 01: The agency itself, I think, defined this as a decision support tool for future proposals, and the court itself characterized this as the agency approving a particular type of technology on these existing leases. [00:28:41] Speaker 01: And just to step back again, as this court has routinely recognized, states have the right and the obligation and the responsibility to regulate [00:28:51] Speaker 01: wild animals and hunting practices within this border, within their borders and as this court recognized just last year in CBD versus USFS, that right tends to exist unless the federal government decides to step in to preempt state regulations, which it rarely does. [00:29:10] Speaker 01: I think this is an example. [00:29:12] Speaker 01: And of course, in that case, the court recognized that the Forest Service has authority. [00:29:16] Speaker 01: It can step in if there's some conflict with federal law, but that it rarely does so. [00:29:23] Speaker 01: And I think the national policy is consistent with that sort of existing regulatory scheme, which is quite distinguishable from what you have in the Boehm case. [00:29:33] Speaker 01: So, just to step back a little bit and talk about what the states do. [00:29:39] Speaker 01: So, as the statute says, the federal government or federal agency has to consult if it authorizes. [00:29:48] Speaker 01: which is relevant in this case, authorizes the underlying activity. [00:29:52] Speaker 01: How it stands today, states are the ones that authorize the underlying activity. [00:29:56] Speaker 01: States decide whether or not hunters may use bait when they go out and hunt. [00:30:02] Speaker 01: They issue regulations and permits and licenses. [00:30:06] Speaker 01: They decide where, when, and how hunters may place bait when they are going out and doing that activity. [00:30:12] Speaker 01: Since the national policy was adopted in 1995, some states, including Idaho and Wyoming, have continued to allow the practice. [00:30:21] Speaker 01: Some states have decided to outlaw the practice and there are at least a couple states that now prohibit it since the national policy. [00:30:28] Speaker 01: And I think that just sort of underscores that it's not the federal government authorizing this activity. [00:30:34] Speaker 01: It really is the states that are doing that. [00:30:36] Speaker 00: I mean, is that just sort of question begging though? [00:30:39] Speaker 00: Because if the baseline was that in Wyoming before the federal government was regulating the policy, stopping that is a way of saying, I'm sorry, I think I said the wrong word. [00:30:51] Speaker 00: Before in Wyoming, they were allowing [00:30:54] Speaker 00: they were stopping baiting by regulating the practice. [00:30:58] Speaker 00: After this national policy in Wyoming, baiting is allowed. [00:31:03] Speaker 00: So you could call it the state is letting them, but by letting the state let them, isn't the federal government letting them too? [00:31:09] Speaker 01: I think to push back on that, if Wyoming decided to prohibit black bear baiting within their borders, the federal government, the national policy wouldn't be authorizing anything. [00:31:19] Speaker 01: Again, it comes down to what the state decides to do and whether to authorize that practice. [00:31:24] Speaker 00: And you think the change from taking an active role as the federal government to not is not a change that counts as? [00:31:33] Speaker 01: I think that you have to look at what the change says. [00:31:35] Speaker 01: You have to look at what the national policy says. [00:31:38] Speaker 01: It can't just be that an agency change in position or a statement itself automatically constitutes section seven action. [00:31:45] Speaker 01: I think you have to look at what the policy says. [00:31:47] Speaker 01: And here the policy says we are reaffirming that states have the role of regulating hunting practices. [00:31:53] Speaker 01: We're retaining the longstanding tradition that states will regulate this. [00:31:58] Speaker 01: It is really harkening back to this overarching concept that states are the ones that will regulate hunting practices. [00:32:04] Speaker 00: And why do you think again that that wasn't a change in Wyoming? [00:32:07] Speaker 01: I mean, so a number of reasons, but first of all, again, I pushed back on just the fact that there is a change. [00:32:14] Speaker 01: You have to look at whether the federal government, whether the federal agency is authorizing the underlying activity. [00:32:20] Speaker 01: A change doesn't necessarily mean that the agency itself is authorizing that underlying activity. [00:32:26] Speaker 01: It can't be that just any time the agency slightly changes its position, if it is not authorizing anything or it's not regulating anything, and it's deciding to step back and not be the one regulating that process, that it becomes a Section 7 action that requires consultation. [00:32:45] Speaker 00: And so I think that, you know, that's. [00:32:47] Speaker 00: So they're prohibiting and then they stop prohibiting, but that doesn't count as authorizing. [00:32:53] Speaker 01: I don't think so, just given the overarching fact that the states are the ones authorizing this practice. [00:32:59] Speaker 01: I would also point the court's attention to the DC Circuit Decision and Fund for Animals, which is another circuit court that has looked specifically at this national policy. [00:33:08] Speaker 01: And it held, you know, just a couple years after it was issued that this was the Forest Service refraining from regulating [00:33:15] Speaker 01: and implementing the long-standing policy of deferring to state law. [00:33:19] Speaker 00: Under the Endangered Species Act, there's no holding about this. [00:33:22] Speaker 00: There's hint that they agree with you, but there's not a holding, right? [00:33:25] Speaker 01: That's correct. [00:33:25] Speaker 01: There's no holding specifically that it's not agency action, but I think that is helpful sort of just to characterize what the nature of what the Forest Service was doing and saying that it's implementing this long-standing practice and refraining from regulating. [00:33:39] Speaker 01: And the court did suggest that it might not be agency and action under NEPA because it was implementing this long-standing policy. [00:33:48] Speaker 01: And then under the ESA, it explained, you know, if it is this sort of inaction, it might not be section seven action. [00:33:54] Speaker 00: But the long-standing policy of refraining from regulating was not the long-standing policy in Wyoming. [00:34:00] Speaker 01: Again, I think I would push back a little bit on the fact that the Forest Service had a long-standing policy of regulating baiting in Wyoming. [00:34:09] Speaker 01: Hunters were able to hunt with bait in Wyoming before the Forest Service was even established, and Congress has again and again recognized in federal statutes that states retain responsibility and jurisdiction over hunting practices. [00:34:24] Speaker 01: So the fact that there were some forests in Wyoming that were requiring special use permits [00:34:29] Speaker 01: I think is not necessarily indicative of the fact that there was a significant change in what the Forest Service was doing. [00:34:35] Speaker 00: Can I ask you, if we don't agree with you on this issue, and they went on whether this is agency action, what do you have to say about the new information issue? [00:34:42] Speaker 01: Certainly. [00:34:43] Speaker 01: So a couple of points. [00:34:44] Speaker 01: First, I do think the fact that there is no consultation on the books right now means that there's nothing for the agencies to reinitiate. [00:34:53] Speaker 01: So that issue would have to be addressed. [00:34:58] Speaker 00: Let's say you lose on that issue. [00:34:59] Speaker 01: Yeah, in terms of re-initiate, so that is my reasoning for why we did not brief the issue of new information because there is no existing consultation. [00:35:08] Speaker 01: In terms of the new information that appellants have [00:35:13] Speaker 01: raised today. [00:35:14] Speaker 01: I first want to address the court's two questions. [00:35:17] Speaker 01: So in the order last week, the court asked if there was any criteria that governs what is new information. [00:35:23] Speaker 01: From my understanding, there's no specific guidance on criteria other than what's in the regulation itself. [00:35:30] Speaker 01: But the regulation itself doesn't say, as Your Honor has recognized, doesn't say that any new information constitutes enough to be the trigger for a reinitiation of consultation. [00:35:42] Speaker 01: It's only new information that reveals effects of the action that may affect listed species in a manner or to an extent not previously considered. [00:35:51] Speaker 01: And so the two sort of buckets that appellants have raised here today are one, that there have been at least a couple of [00:35:59] Speaker 01: takes of grizzly bears over bait sites on national forest lands, but the only examples that they cite are from 2007 or earlier, and they filed this lawsuit in 2019 well beyond the six-year statute of limitations for any sort of take in that context to be a trigger for re-initiation under the ESA. [00:36:20] Speaker 00: Do you argue that statute of limitations argument in the district court? [00:36:23] Speaker 01: We put it in a footnote in one of our briefs, but we did not argue it affirmatively. [00:36:28] Speaker 01: Again, based on the position that there is no consultation to reinitiate. [00:36:33] Speaker 04: Is there no consultation because the Forest Service asked the Fish and Wildlife Service to withdraw the letters? [00:36:40] Speaker 01: That's correct. [00:36:41] Speaker 04: There clearly was some kind of consultation in 1995 in that period. [00:36:45] Speaker 01: Yes, that's correct. [00:36:46] Speaker 04: Okay, so I mean, there clearly was some kind of consultation. [00:36:50] Speaker 04: At least in 1995, it appears that the Forest Service thought that it had an obligation to go to fish and wildlife. [00:36:56] Speaker 01: That's correct, Your Honor, and it's a little unclear in the record whether that stemmed from the Forest Service's agreements and sort of the stays of the litigation as they were deciding to enact this national policy and they agreed to conduct NEPA and ESA. [00:37:11] Speaker 01: But I would point the Court's attention specifically to the letters that the Forest Service and Fish and Wildlife exchanged in 2020, which states that the Forest Service was citing intervening case law, including Fund for Animals and MATESCO, [00:37:24] Speaker 01: to sort of play out the fact that while we consulted in 1995, it is clear looking back at it now based on this intervening case law that this was inaction. [00:37:35] Speaker 04: That action also follows the filing of the lawsuit in 2019. [00:37:38] Speaker 04: That's correct. [00:37:39] Speaker 04: So it looks very collusive. [00:37:41] Speaker 04: It looks like it may be litigation. [00:37:42] Speaker 01: Well, I think the reason that the agencies did it was because there is this confusion about whether the national policy is in action. [00:37:50] Speaker 01: And this would be a continuing confusion if the agencies allowed this consultation to remain on the books. [00:37:56] Speaker 01: I don't think it was collusive. [00:37:57] Speaker 01: I think it brought to the agency the tension that there was this national policy consultation and that it wasn't appropriate giving the standards under the ESA and intervening case law. [00:38:08] Speaker 03: So if the plaintiffs were right that the 95 policy was action and they want it and they now have what they say is new information that triggers reconsultation, what should they be doing at this point? [00:38:23] Speaker 03: I mean, should they have pursued a challenge to the 2020 withdrawal of the consultation documents? [00:38:32] Speaker 03: What is the appropriate vehicle to bring that kind of challenge? [00:38:35] Speaker 01: Certainly. [00:38:36] Speaker 01: And I see I'm out of time, but I'm going to continue answering. [00:38:41] Speaker 01: And they did amend their complaint in the district court to add a challenge to that decision to withdraw the consultation document. [00:38:48] Speaker 01: So I think that would be an appropriate mechanism for challenging that decision and challenging the lack of consultation. [00:38:55] Speaker 03: Do you think, I mean, obviously you would disagree with that on the merits, but is there, I mean, is that an appropriate challenge for somebody to bring at this point? [00:39:04] Speaker 03: If they have an argument that the old policy really was something that triggered consultation, can they now come in and say, based on that, you can't withdraw the consultation documents? [00:39:16] Speaker 03: Is that a valid procedural? [00:39:18] Speaker 01: I think there would be, you know, you have to look to see if there are any sort of jurisdictional issues with that. [00:39:24] Speaker 01: We have not briefed that because that isn't before the court. [00:39:27] Speaker 01: But I think that would, you know, the question of whether that withdrawal decision was reasonable or arbitrary in some capacity might be a vehicle. [00:39:36] Speaker 01: I did want to really quickly touch on the new information about expanded range. [00:39:41] Speaker 01: So again, the statute itself talks about, or the regulation itself talks about new information that reveals effects of the action on the species. [00:39:49] Speaker 01: Appellants cite no case that holds that a species expanded range. [00:39:55] Speaker 01: The fact that a species is doing really well is revealing new effects of the action that weren't previously considered. [00:40:02] Speaker 01: The only example they cite is a case where the species range was actually contracting. [00:40:06] Speaker 01: And if you just think about the fact that, you know, if a species range is contracting in the face of the agency action, that could be revealing some effects of the action that weren't considered. [00:40:16] Speaker 01: I don't think that standing alone, the fact that a species range is improving and expanding without citing some sort of effect on the species is sufficient to trigger that new information requirement. [00:40:32] Speaker 00: find it, but there's something in the announcement of the policy that says, we don't really anticipate that grizzly bears will be killed. [00:40:40] Speaker 00: We know it's a possibility, but we don't really anticipate it. [00:40:42] Speaker 00: And there is something that says, if we do get information that there is taking, that we will re-initiate consultation. [00:40:50] Speaker 00: Do you know what I'm talking about? [00:40:51] Speaker 00: I'm having trouble finding the page. [00:40:52] Speaker 00: But what you're saying about why that hasn't happened. [00:40:54] Speaker 01: And I don't have that in front of me, and I want to be clear that there's a distinction here between whether the agencies could consider that pre-2007 information in deciding whether they want to reinitiate consultation versus appellants bringing a claim 12 years after it occurred. [00:41:13] Speaker 01: as an APA challenge saying that that's the trigger for re-initiation. [00:41:18] Speaker 01: And this court has held that the statute of limitations applies to ESA consultations in the first instance. [00:41:25] Speaker 01: It's not a continuing obligation in the sense that there has to be some trigger and the case has to be brought within. [00:41:32] Speaker 01: That was six years and that's the CBD versus EPA case. [00:41:37] Speaker 00: I feel like there's confusion here about whether they're actually asking for new national policy or some problem within the national policy. [00:41:45] Speaker 00: But if we take them to be arguing that this national policy [00:41:50] Speaker 00: Like, okay, one thing they could be saying is, okay, the national policy said if a bear, if there's taking of a bear, that's going to reinitiate. [00:41:58] Speaker 00: They didn't do that in time, maybe. [00:41:59] Speaker 00: But maybe they can still say, look, this whole national policy somehow isn't working because this has happened and nothing happened. [00:42:06] Speaker 01: Yeah, and I would, I would admit that that is not an argument they have made at all throughout this case. [00:42:11] Speaker 01: Their argument has been that there is new information that requires the agencies to reinitiate consultation on the national policy and a consultation on the national policy. [00:42:21] Speaker 00: So it was maybe too late for them to come in and say, look, your national policy said if a bear is killed, you're going to do something within the national policy. [00:42:29] Speaker 00: They've missed that chance, I guess. [00:42:30] Speaker 00: But if we step back and now they're saying the new information as a whole makes you reconsider the national policy and part of what we take into account is the fact that you didn't do what you said you were going to do in the national policy. [00:42:43] Speaker 01: I think the outcome of a new consultation would be the agencies looking at what the policy says and determining whether there needs to be any new mitigation measures in place for the policy. [00:42:56] Speaker 01: It's not necessarily going into the policy itself and saying you're not doing that unless [00:43:01] Speaker 01: you know, there were mitigation measures that were in there that weren't carried out. [00:43:05] Speaker 01: And so I think, you know, we're getting down into what the agencies might do down the future if they were to reinitiate a consultation, which we just don't have a record on. [00:43:14] Speaker 01: But what they've maintained throughout this case is that there needs to be reinitiation so that the agencies can consider whether there are effects of the national policy that weren't previously considered. [00:43:25] Speaker 00: And do you think that issue is before us such that if we agreed with you on that, that would be all we would need to decide. [00:43:32] Speaker 00: We could just say, regardless of whether it's the agency action, there's no new information so they don't win. [00:43:37] Speaker 01: I think the court could affirm on any basis supported by the record, and while we didn't fully brief that, I think the court could do that. [00:43:45] Speaker 01: I don't know necessarily if that would resolve all of the issues in this case, but that is certainly possible for this specific litigation. [00:43:53] Speaker 00: And you don't think we would need to remand to the district court or something about that, or it would be okay for us to just do that? [00:44:00] Speaker 00: I think that would be fine. [00:44:05] Speaker 00: Thank you. [00:44:05] Speaker 00: We're taking over your time, thank you. [00:44:06] Speaker 00: Yeah, you're welcome. [00:44:07] Speaker 00: We still have five minutes. [00:44:17] Speaker 02: May it please the court counsel, Travis Jordan for the State of Wyoming with me here today, as mentioned earlier, is Mr. Moroney for the State of Idaho. [00:44:25] Speaker 02: Unless otherwise, Director, I want to offer some clarifications to some of the factual timeline that occurred here and then speak to new information. [00:44:34] Speaker 02: Judge Friedland, you had mentioned there's a portion that you had read, if there's an incident, I'll take a zero, that reinitiation would happen. [00:44:42] Speaker 02: That was in the 1993 biological opinion that accompanied the Wyoming-specific policy. [00:44:48] Speaker 02: That was at SCR 164. [00:44:51] Speaker 02: That policy was rescinded that same year and was two years before the national policy challenged a case in this case. [00:44:58] Speaker 00: But it was relied on in adopting this policy, right? [00:45:01] Speaker 02: Your honor the the the concurrence letter says we will adopt the management criteria for Wyoming for biological opinion It did not adopt the ITS the incentive will take statement So those two management criteria if you look at the concurrence letter that occurred in 1995 it said that the Forest Service is going to encourage the state of Wyoming to [00:45:21] Speaker 02: include a disclude or prohibit baiting in the wilderness areas, as well as making sure that game and fish personnel remove a black bear bait if a grizzly bear is present at it. [00:45:32] Speaker 02: So the concurrence recognized the mitigation measures, but didn't carry over the buy-off. [00:45:40] Speaker 02: And below, and mentioned briefly in the briefing in this case, the state of Wyoming took the position that the 1993 biological opinion is no longer operable because the underlying policy was rescinded expressly by the Forest Service before 1994. [00:45:59] Speaker 02: And as my colleague mentioned, there was a blanket ban during the 1994 interim period until the 1995 policy was enacted. [00:46:07] Speaker 02: And that understanding, Your Honor, is consistent with this Court's affirmance in Wild Equity Institute, where it said, a previous biological opinion carries no weight if the decision no longer exists. [00:46:21] Speaker 02: One other thing on the timeline, your honor, honors opposing counsel it suggested that the Forest Service has regulated hunting in Wyoming, since the 1980s 60s through special use permits and that's disingenuous and also not consistent with the record. [00:46:38] Speaker 02: That reference is at SER page 87. [00:46:42] Speaker 02: The Forest Service used special use permits to regulate baiting in Wyoming for sanitation and litter purposes. [00:46:51] Speaker 02: It couldn't have done it to prohibit potential injuries to grizzly bears because grizzly bears weren't even listed under the Endangered Species Act until 1975. [00:47:00] Speaker 02: That evidence in the record is belated in supported in 1980 SCR 68 and SCR 95 where the Forest Service was expressing concerns with resource conflicts with black bear baits not its intention to regulate hunting itself, your honor, none of us would want. [00:47:16] Speaker 02: to recreate near a black bear bait site. [00:47:20] Speaker 02: And Wyoming regulations or anything Wyoming could do couldn't fix that on the Forest Service. [00:47:24] Speaker 02: It was up to the Forest Service itself to regulate those resource conflicts. [00:47:29] Speaker 02: But then we get into the 1990s and as grizzly bears started to move out of Yellowstone National Park outside of the primary conservation area and then into the demographic monitoring area, we started to see these resource conflicts. [00:47:41] Speaker 02: And that's when Wyoming started to bring its regulations forward [00:47:45] Speaker 02: to ensure that it would prohibit baiting in high traffic areas, as well as regulate the practice of what goes in the bait and what can be done during the baiting season. [00:47:55] Speaker 02: With that, I'll just move briefly. [00:47:57] Speaker 00: I understood what you were just saying. [00:47:58] Speaker 00: You're saying the federal government could not have done more regulation? [00:48:00] Speaker 00: Is that what you're trying to say? [00:48:02] Speaker 02: No, no, no, Your Honor. [00:48:03] Speaker 02: The purpose of the special use permits were to address litter. [00:48:07] Speaker 02: And in fact, the Forest Service, as my colleague mentioned from the federal government, moved away from special use permits actually in 1984. [00:48:15] Speaker 02: The Forest Service was intending to address litter concerns. [00:48:18] Speaker 00: I thought that in Wyoming there were special use permits until like 1992 or 93. [00:48:24] Speaker 02: There were, so in 1992 there was a bear hunting season with partial closures. [00:48:28] Speaker 02: Those were closure orders. [00:48:29] Speaker 02: The actual 1993 there was some, there was the interim policy which was subject to litigation. [00:48:35] Speaker 02: In 1994 you had the full ban. [00:48:37] Speaker 02: Whether or not there were special use permits for non-commercial hunting, that doesn't seem to indicate in the record. [00:48:43] Speaker 02: There had been some past where guided outfitters and guides may have had to get their special use permit. [00:48:48] Speaker 00: In any event, there were closure orders in Wyoming leading up to 1995. [00:48:54] Speaker 00: So that is the federal government regulating? [00:48:56] Speaker 02: Yes, Your Honor. [00:48:56] Speaker 02: 1994 was in direct response to the litigation in a court order. [00:49:00] Speaker 02: And then the closure order in 1992 was partial, as my colleague mentioned, as well as 1993, where they felt there were still resource conflicts. [00:49:09] Speaker 02: with recreationalists and campsites and that and such. [00:49:13] Speaker 02: So it's just a blanket ban saying we don't want you doing in these particular sections, the Bridger Teton of Shoshone National Forest. [00:49:21] Speaker 00: And did the closure orders actually continue for a while after 1995? [00:49:24] Speaker 02: They ended in 1998, and that was after Wyoming regulation finally prohibited the use of bait in all wilderness areas. [00:49:33] Speaker 02: So we're talking about three million acres in Wyoming that are prohibited from baiting a Forest Service lands where there's no baiting occurring at all. [00:49:41] Speaker 02: And so once the Forest Service, consistent with the policy, recognized that state regulation was adequate, it lifted its closure orders. [00:49:49] Speaker 02: So we haven't had a closure order in effect in Wyoming since 1998. [00:49:52] Speaker 00: What I was a little bit confused about, though, is I thought the national policy said basically we're not going to do closure orders anymore, but it seems like one was still in effect for a little while, for three more years. [00:50:02] Speaker 02: Your Honor, I'd look at SCR 65 and 66, and really the national policy is we recognize states regulate hunting practices. [00:50:10] Speaker 02: If there's an issue, our first step is to consult and coordinate with the states where there might be an issue and get them to change the regulations if we can. [00:50:19] Speaker 02: The final step is to go through the closure order process. [00:50:23] Speaker 02: So if the Forest Service can't manage these resource conflicts effectively with state cooperation, they still have that opportunity. [00:50:31] Speaker 00: Do you think that's what happened between 1995 and 1998? [00:50:34] Speaker 02: I think it was partly, it was a transition period. [00:50:36] Speaker 02: 1998, it took some time for the Game and Fish Commission to satisfy the conditions of Forest Service in making sure all of those wilderness areas were prohibited from potential baiting in the state of Wyoming. [00:50:49] Speaker 02: And I'll just note the record site where that conversation, that was at SCR 59, where the Forest Service has the dialogue of why it removed the closure order for Wyoming. [00:51:02] Speaker 02: If I I've run over my time and so I would just like to to make a final conclusion. [00:51:06] Speaker 02: My colleague mentioned that really the agencies here being punished for success with respect to new information the intent of grizzly bear recovery is to see grizzly bears expand in population expand in their habitat. [00:51:20] Speaker 02: It's a hard stretch to suggest that Grizzly Bear's success is a reason for re-initiating consultation under the definition of new information. [00:51:28] Speaker 02: And, accordingly, the states of Wyoming and Idaho would respectfully request this court to affirm. [00:51:44] Speaker 05: Your Honours, I'd like to briefly address a couple points that were raised by my friends on the other side. [00:51:49] Speaker 05: First of all, again, when the Forest Service sat down at the table in 1995, when it considered the alternatives set forth in the record, alternatives one through four, it considered, this is alternative two, it considered relying only on state regulations to regulate baiting on national forests. [00:52:06] Speaker 05: I think that's what my friends on the other side characterized what it in fact did do. [00:52:09] Speaker 05: It is not it rejected that alternative instead adopted this framework of monitoring the practice of mandating the monitoring of the practice and to intervene as necessary to protect grizzlies and other federal interests. [00:52:24] Speaker 05: So it's it wasn't just taking a step back and allowing states to to regulate in its stead. [00:52:29] Speaker 05: It was a [00:52:31] Speaker 05: framework of concurrent jurisdiction between the federal and state governments. [00:52:36] Speaker 05: And there's nothing unusual about that. [00:52:38] Speaker 05: So certainly it's true that in Wyoming and in Idaho, the states do issue the licenses to, they allow the practice, they issue the licenses for baiting, but that's not to the exclusion of federal involvement, right? [00:52:53] Speaker 05: And there's nothing unusual about that, as the Supreme Court recognized in [00:52:56] Speaker 00: And so, I mean, why isn't it too late for you to use the 2007 takes of these bears to be here today? [00:53:04] Speaker 05: A couple of points in response to that. [00:53:05] Speaker 05: First of all, under this court's framework for evaluating statute of limitations, when there's inaction, that's an evergreen, as this court has stated, cause of action when you're challenging inaction, which we do here. [00:53:20] Speaker 05: It's the failure to initiate consultation that is in the nature of a claim challenging inaction by the government. [00:53:26] Speaker 05: So that is an evergreen cause of action that could be brought at any point. [00:53:29] Speaker 05: And I think more importantly, [00:53:30] Speaker 05: We didn't learn about, and my clients did not learn about those instances of grizzly take until 2019 when we filed this lawsuit. [00:53:36] Speaker 05: And that's because the Forest Service did not do what it said it would do under the national policy. [00:53:41] Speaker 00: So your friend on the other side said they didn't really say that. [00:53:44] Speaker 00: They said that in some earlier document, not this one. [00:53:46] Speaker 00: Do you have a response to that? [00:53:48] Speaker 05: I'm sorry, Your Honor. [00:53:49] Speaker 00: The argument that one of these documents says that if there is a take of a grizzly bear, we'll reinitiate consultation. [00:53:56] Speaker 00: He says that was not the relevant documents. [00:53:58] Speaker 00: Do you agree with that? [00:53:59] Speaker 05: Well, so to clarify, that was at ER 164, and that is the 1993 biop on the Wyoming policy, as my friend on the other side acknowledged. [00:54:08] Speaker 05: I think that it's clear that the agency has contemplated that the guidelines and the restrictions of the 1993 biop would be carried forward and be applied to the national policy. [00:54:21] Speaker 05: I understand that my friends on either side disagree with that view of things. [00:54:24] Speaker 05: I think it's ultimately actually not necessary to answer that question, though, because here it's not just the incidental take of those grizzlies. [00:54:30] Speaker 05: It's not that we're seeking to enforce that incidental take statement of the Wyoming BiOp. [00:54:34] Speaker 05: It's that the instances of grizzlies being shot is itself new information, which is a separate regulatory trigger under the regulations for re-initiation of consultation. [00:54:43] Speaker 05: And it's not just those instances of grizzlies being shot. [00:54:47] Speaker 05: I see that I'm out of time, Your Honor. [00:54:48] Speaker 05: May I briefly finish? [00:54:49] Speaker 00: Finish your thought. [00:54:50] Speaker 05: It's also the expanded range, again, and the, you know, the bitter root ecosystem is a vital import to the survival of the species, the recovery of the species. [00:54:58] Speaker 05: There's no grizzly population there, and grizzlies being shot on the path to the bitter root ecosystem is new information that would require re-initiation of consultation, Your Honors. [00:55:08] Speaker 05: Thank you. [00:55:10] Speaker 00: Thank you, both sides, for the helpful arguments. [00:55:12] Speaker 00: This case is submitted, and we're adjourned for the day.