[00:00:28] Speaker 01:
Next case is Defenders of Wildlife versus United States Forest Service, number 231093.

[00:00:40] Speaker 01:
Counsel, you may proceed.

[00:00:42] Speaker 03:
Thank you.

[00:00:44] Speaker 03:
Good morning.

[00:00:45] Speaker 03:
I'm Ellen Richmond.

[00:00:46] Speaker 03:
I represent Petitioner Appellant Defenders of Wildlife, and I'd like to reserve three minutes of my time for rebuttal today.

[00:00:54] Speaker 03:
I'm going to focus my remarks on two of the four issues that we briefed, two key deficiencies in this biological opinion.

[00:01:03] Speaker 03:
And a full analysis in this biop is really important.

[00:01:07] Speaker 03:
This biological opinion is coming at a key time for an entire lynx population, the only lynx remaining in the southern Rockies.

[00:01:17] Speaker 03:
This is a population that Forest Service researchers have said is in the emergency room.

[00:01:23] Speaker 03:
It's a population that fish and wildlife service biologists have found is on a downward trajectory.

[00:01:28] Speaker 03:
And it's a population that depends heavily on a single national forest, the Rio Grande.

[00:01:35] Speaker 03:
So because the revised forest plan for that forest lessens protections against logging in lynx habitat, a full analysis of that change is really important.

[00:01:47] Speaker 03:
Turning now to the first of the two omissions that I mentioned at the outset, that's the failure to adequately analyze Lynx usage of the northern portions of this forest.

[00:01:57] Speaker 03:
Three points to mention here.

[00:02:00] Speaker 03:
First, the agencies relied on the Squire study as the basis for their assessment of Lynx usage of the forest.

[00:02:07] Speaker 03:
Second point, and this is undisputed, the Squire study did not cover the northern portions of this forest.

[00:02:14] Speaker 03:
It was limited to the southern portions.

[00:02:18] Speaker 03:
That's why, third point, there's no support in the record for the Fish and Wildlife Service's ultimate conclusion that it's OK to lessen protections for lynx habitat in the northern portions of the forest because those portions simply weren't covered in the Squire study.

[00:02:36] Speaker 03:
Now, I want to make really clear what defenders, defenders of wildlife, is not arguing here.

[00:02:42] Speaker 03:
We are not arguing that Dr. Squire's study was flawed.

[00:02:45] Speaker 03:
We're not arguing that Dr. Squires should redo his study.

[00:02:49] Speaker 03:
We're not asking any court to order any additional studies at all.

[00:02:53] Speaker 03:
We're simply arguing that some sound basis is required for assessing Lynx usage of the northern portions of this forest.

[00:03:00] Speaker 03:
And the Squires study didn't cover those areas, so it can't supply that information.

[00:03:07] Speaker 01:
Well, Counsel, I'm digging into the biop here.

[00:03:13] Speaker 01:
And it does say in the appendix of 230 that the study, the Squire study, in the case of Lynx occupancy in the northern LAUs is unlikely because the habitat conditions they prefer is lacking.

[00:03:31] Speaker 01:
And why doesn't that show that the biological sitter, whether the plan's designation of the northern park

[00:03:38] Speaker 01:
that the forest is low use would jeopardize the linkage based on habitat requirements found in the Squire study.

[00:03:45] Speaker 01:
I understand that the study didn't focus on, but it did identify habitat conditions that the biop in turn analyzed with respect to the northern portion.

[00:03:58] Speaker 03:
Right.

[00:03:59] Speaker 03:
I'm looking at page 230.

[00:04:01] Speaker 03:
It says, based on Squires et al.

[00:04:04] Speaker 03:
2020, we believe habitat is unlikely to provide sufficient high quality habitat.

[00:04:10] Speaker 03:
That statement simply can't be based on Squires et al.

[00:04:14] Speaker 03:
2020, because Squires et al.

[00:04:16] Speaker 03:
2020 didn't cover those high use

[00:04:20] Speaker 03:
areas.

[00:04:21] Speaker 01:
So that's... That wasn't my question.

[00:04:23] Speaker 01:
I understand it didn't cover those specific areas, but it did analyze habitat conditions, and the BIOT talks about the habitat conditions in the northern portion.

[00:04:35] Speaker 01:
Why can't the agency do that?

[00:04:37] Speaker 01:
Why can't it extrapolate from the Squire study?

[00:04:41] Speaker 03:
The agency can't extrapolate from the Squire study because

[00:04:47] Speaker 03:
there simply wouldn't be any basis to extend the Squires discussion of habitat, and I agree Squires does discuss habitat, to habitat elsewhere in the forest.

[00:04:58] Speaker 01:
Why not?

[00:05:00] Speaker 01:
Don't you have to show that it would be arbitrary and unreasonable to do that?

[00:05:04] Speaker 01:
Why is it unreasonable to do that?

[00:05:07] Speaker 03:
It's unreasonable to do that because the agency simply doesn't know anything about the habitat in the northern parts of the forest.

[00:05:16] Speaker 03:
They couldn't have gotten that from the Squire study because the Squire study didn't... They know nothing about the habitat in that part of the forest.

[00:05:27] Speaker 01:
Nothing.

[00:05:28] Speaker 01:
You stored nothing.

[00:05:30] Speaker 01:
Is that accurate?

[00:05:32] Speaker 03:
That's not what I'm arguing, Your Honor.

[00:05:34] Speaker 03:
I'm arguing that they can't know anything about the habitat in that part of the forest based on the Squire study, which is what the... Well, no.

[00:05:41] Speaker 01:
You're combining the analysis in the Squire study with what they do know about the habitat.

[00:05:49] Speaker 03:
I agree that it would be appropriate for the agency to combine what they do know about the habitat with what they know from the Squires study.

[00:05:58] Speaker 03:
But the ESA requires that they use the best available science with respect to the northern areas.

[00:06:04] Speaker 03:
And there is a study that covers those areas, a scientific study, and that's the Ivan study from 2012 that's in the fourth volume of the record.

[00:06:16] Speaker 03:
That's a scientific paper that found a high probability of Lynx usage of the entire forest, not just the southern areas.

[00:06:25] Speaker 03:
So that study should have been considered along with the best available science from the southern portion of the forest, which is the Squire.

[00:06:33] Speaker 01:
But wasn't Ivins a co-author of the Squire study?

[00:06:37] Speaker 03:
Dr. Ivins wasn't.

[00:06:38] Speaker 01:
Doesn't that mean that Dr. Ivins accepted and endorsed what was in the Squire study?

[00:06:46] Speaker 03:
It does mean that Dr. Ivan accepted and endorsed what was in the Squire study.

[00:06:50] Speaker 01:
And wasn't the Squire study peer-reviewed and the scientific study in Ivan's was not?

[00:06:54] Speaker 03:
Yes, all of that is true.

[00:06:56] Speaker 01:
And so how does that show that the Forest Service didn't rely on best available scientific evidence?

[00:07:05] Speaker 03:
Dr. Ivan, in being a co-author of the Squire study, wasn't asked to endorse

[00:07:14] Speaker 03:
how the US Fish and Wildlife Service would extrapolate from the Squire study.

[00:07:20] Speaker 01:
So I just- Well, neither was Dr. Squire's.

[00:07:23] Speaker 03:
No.

[00:07:24] Speaker 01:
And I- But there were others who did.

[00:07:26] Speaker 01:
Didn't we have experts from the state and the agency itself?

[00:07:32] Speaker 03:
Yes.

[00:07:33] Speaker 03:
There is a reference in the revised BiOp 2 consultations with state and forest biologists that happened before the Squire study occurred.

[00:07:44] Speaker 03:
The agencies haven't cited a single case where such an informal expert consultation with no disclosure of the basis or the underlying data or the techniques was used to support so important policy decision as the exclusions of hundreds of thousands of acres of mapped lynx habitat from protections.

[00:08:09] Speaker 03:
The cases they've cited are cases in which

[00:08:12] Speaker 03:
data and underlying techniques were disclosed in the record.

[00:08:18] Speaker 03:
And I'm thinking here of the Applamato Falcon case, in which there had been surveys, and Judge Kelly's opinion in the Colorado Wilde case about categorical exclusions, I believe, in which the underlying data and techniques were all disclosed.

[00:08:34] Speaker 03:
This case is more like the Cougar animal protection case

[00:08:40] Speaker 03:
out of the District of New Mexico that we cited in which a conclusory and unsubstantiated personal comment from an expert was not accorded deference.

[00:08:51] Speaker 03:
And it only makes sense that that's the case.

[00:08:54] Speaker 03:
Expert intuitions, even from those who are well versed in the facts, don't always prove out upon scientific study.

[00:09:04] Speaker 03:
And we saw that in the Squires study, in this case, in which the hypothesis that was initially tested ultimately was disproved when the study was finished.

[00:09:20] Speaker 03:
The ESA requires that the agency look at the best available science for the whole forest.

[00:09:27] Speaker 03:
And I would submit that that's the Ivan study for the northern areas and the Squires study

[00:09:34] Speaker 03:
for the southern areas.

[00:09:37] Speaker 03:
I'd like to turn now to the second of the two omissions that I outlined at the outset, which is the failure of the agencies to analyze the population projections from the 2017 species status assessment.

[00:09:51] Speaker 03:
And that SSA found three key things.

[00:09:56] Speaker 03:
First, this Colorado population of lynx is on a downward trajectory.

[00:10:01] Speaker 03:
Second, the protections of the Southern Rockies Links Amendment, or CERLA, are important to securing the future of the Colorado population.

[00:10:11] Speaker 03:
And finally, the Colorado population is important to the DPS, the lower 48, links population as a whole.

[00:10:19] Speaker 03:
The loss of any population unit, including Colorado, would be detrimental to the future of that DPS.

[00:10:26] Speaker 01:
Did the Fish and Wildlife Service draw that conclusion?

[00:10:30] Speaker 03:
The Fish and Wildlife Service drew that conclusion in 2017, but it wasn't discussed in the biological opinion.

[00:10:37] Speaker 01:
Well, did the Fish and Wildlife Service find that the lynx in the Rio Grande National Forest are particularly important to the overall DPS?

[00:10:47] Speaker 01:
Yes.

[00:10:48] Speaker 01:
Especially when there's six other Colorado forests, five other geographical units that are homes to the lynx and only 2% of the lynx habitat

[00:10:57] Speaker 01:
is located there.

[00:10:59] Speaker 01:
So where did the Fish and Wildlife Service determine that they were particularly important to the overall DPS?

[00:11:08] Speaker 01:
And I understand the DPS to be the 48 states.

[00:11:11] Speaker 01:
Is that correct?

[00:11:12] Speaker 03:
Yes, the lower 48.

[00:11:14] Speaker 03:
And the place that that finding is located is in the 2017 SSA.

[00:11:20] Speaker 03:
And I'd like to address the quotations from the biological opinion.

[00:11:24] Speaker 03:
But I could point the court to, I believe it's page 181 of volume 6 of the appendix, where some of those observations are included and all the citations are in our brief.

[00:11:38] Speaker 03:
But what the service said in the NSA is, look, if you lose any one of these six population units, that would reduce the resiliency and thus impact the future of the lower 48 population as a whole.

[00:11:54] Speaker 03:
And that makes sense given what the service said elsewhere in the SSA.

[00:11:59] Speaker 03:
Colorado has a lot of good snowy lynx habitat at high elevation.

[00:12:04] Speaker 03:
And some of those five other lynx populations are in places like Maine where they have nowhere else to go up slope.

[00:12:12] Speaker 03:
So Colorado could prove an important elevational refuge, I believe is the term the SSA uses.

[00:12:21] Speaker 03:
in a warming world.

[00:12:23] Speaker 03:
And so that sort of provides the specifics for why Colorado is important.

[00:12:28] Speaker 01:
Now, I agree... Colorado or this... There's Colorado, but there's this forest.

[00:12:36] Speaker 01:
Right.

[00:12:36] Speaker 01:
Did they specify this forest?

[00:12:38] Speaker 03:
They did not specify this forest, but the record says elsewhere that this forest contains the majority of the locations where links can consistently be found.

[00:12:48] Speaker 03:
85% of the links that were released in Colorado were released in this forest.

[00:12:52] Speaker 03:
So this forest really is the stronghold.

[00:12:56] Speaker 03:
And now I want to address your honor's point about the 2% of links habitat in the DPS.

[00:13:01] Speaker 03:
2% is an observation about the quantity of links habitat in this forest, but it doesn't address the quality.

[00:13:10] Speaker 03:
This forest is supporting

[00:13:14] Speaker 03:
or is at least providing primary support for an entire Lynx population, a Lynx population that the SSA found was important, and if it goes away, would impact the DPS overall.

[00:13:26] Speaker 03:
And those findings should have been considered in the 2021 BiOp.

[00:13:32] Speaker 03:
Unless there are further questions, I'd like to reserve the remainder of my time.

[00:13:38] Speaker 01:
Judge Kelly, do you have anything at this time?

[00:13:42] Speaker 01:
No, thank you.

[00:13:43] Speaker 03:
Thank you.

[00:13:48] Speaker 00:
Good morning, Your Honors.

[00:13:49] Speaker 00:
May it please the Court, Jacob Ecker from the Federal Agency at Belize.

[00:13:54] Speaker 00:
After a spruce beetle outbreak wiped out 100% of spruce fur overstory in the Rio Grande National Forest, the Forest Service updated its forest plan to be more protective of the Canada lynx in this new habitat.

[00:14:05] Speaker 00:
Based on best available science, it reasonably tailored its protections to the types of uses lynx make of the different areas of the forest.

[00:14:13] Speaker 00:
The issue in the case is whether the Fish and Wildlife Service rationally concluded that that would not cause or contribute to jeopardy of the links.

[00:14:23] Speaker 00:
This determination was based on reasoned scientific conclusions, an area this Court has said is entitled to greatest deference.

[00:14:29] Speaker 00:
The District Court upheld Fish and Wildlife's biop and this Court should affirm.

[00:14:33] Speaker 00:
So I'll take the two arguments that my friend on the other side addressed in the same order.

[00:14:40] Speaker 00:
Chancellor, can you slow down a little bit

[00:14:43] Speaker 00:
Thank you, Your Honor, of course.

[00:14:45] Speaker 00:
So defenders argue first that the Fish and Wildlife Service's conclusions about lynx usage throughout the forest was not adequately supported.

[00:14:54] Speaker 00:
And I would like to point the court first to volume one of the appendix, page 226.

[00:15:00] Speaker 00:
There, the biological opinion makes clear that it is not only the Squire study, but it is also consultation with government biologists before initiating the field study that was the basis for the determination that the northern areas of the forest do not support high-quality lynx habitat.

[00:15:18] Speaker 00:
Well, do we have any idea who these people are?

[00:15:22] Speaker 00:
They're not identified in the biological opinion.

[00:15:25] Speaker 00:
Why isn't that a problem?

[00:15:28] Speaker 00:
I think, Your Honor, that what we have is a situation where Dr. Squires, and I'll just quote, consulted state and forest-level biologists.

[00:15:37] Speaker 00:
I don't know that there's a requirement that those biologists be identified by name.

[00:15:42] Speaker 02:
I think it's... Well, perhaps there is a problem, though, when you're raising it as proof that it was considered.

[00:15:50] Speaker 02:
I mean, that's a very vague phrase that you just read, and that's what you're relying on proper

[00:15:57] Speaker 02:
consideration of the northern part, or just, I'm sorry, read it again.

[00:16:02] Speaker 02:
What do you rely on?

[00:16:04] Speaker 02:
Unnamed state officials.

[00:16:06] Speaker 00:
Let me be clear.

[00:16:07] Speaker 00:
So it's a combination of the Squires study itself, as Judge Matheson pointed out, with the consultation that preceded that study.

[00:16:15] Speaker 00:
So what the biological opinion explains is that before initiating the study, Squires et al.

[00:16:22] Speaker 00:
consulted with state and forest level

[00:16:25] Speaker 00:
biologists to ensure that the designated study area captured all primary Lynx use areas in the forest.

[00:16:33] Speaker 00:
So it's true that it was a premise of the Squire study, right?

[00:16:36] Speaker 00:
The study area was determined based on this consultation, but it's also true that that consultation was part of the basis for the determination

[00:16:50] Speaker 00:
that the northern areas of the forest don't support adequate or high-quality lynx habitat.

[00:16:55] Speaker 00:
And there are multiple discussions throughout the biological opinion where it's explained that the northern portions of the forest simply don't have that same level of high-quality habitat.

[00:17:05] Speaker 00:
And that is supported both by the statements in the biological opinion itself, along with the Theobald and Chenck study, which we discuss at page 32 through 34 of our brief.

[00:17:16] Speaker 00:
At pages 211 through 214 of volume four in that study, you can see two dark clusters.

[00:17:23] Speaker 00:
One is in the southern portion of the forest.

[00:17:25] Speaker 00:
The other is outside of the forest entirely.

[00:17:27] Speaker 00:
The northern portion of the forest is a connectivity area between those two zones.

[00:17:31] Speaker 00:
And the Forest Service reasonably protected that area as a connectivity area by applying all standard one, which is a standard that protects

[00:17:42] Speaker 00:
or requires that connectivity continue and not be disrupted by any future projects.

[00:17:49] Speaker 01:
So, please.

[00:17:52] Speaker 01:
I'm back on page 226 of the biop that you were quoting.

[00:17:59] Speaker 01:
It talks about Dr. Squires consulted with state and forest level biologists.

[00:18:06] Speaker 01:
And then a sentence or two later says, Dr. Squires and colleagues concluded

[00:18:11] Speaker 01:
that the northern portion of the RGNF supported too few Canada links to capture enough individuals to inform reliable modeling and mapping products.

[00:18:22] Speaker 01:
Was that all laid out and explained in the Squire study itself?

[00:18:28] Speaker 01:
What I just read to you, was there an explanation as to the choice of the study area and what was included and what was excluded?

[00:18:39] Speaker 00:
In other words, where did this come from?

[00:18:44] Speaker 00:
Well, it comes from the Fish and Wildlife Service, right?

[00:18:48] Speaker 00:
So it's actually the Fish and Wildlife Service's own statement of what was included and what was excluded from the Squire study.

[00:18:55] Speaker 00:
And so I think, Your Honor, it's

[00:18:57] Speaker 00:
You know, the Squire study describes this methodology.

[00:19:00] Speaker 00:
I don't know that there's, you know, I don't think this is a quote from the Squire study, right?

[00:19:04] Speaker 00:
So I wouldn't, I absolutely wouldn't go that far.

[00:19:07] Speaker 00:
But I think a fundamental premise of the Squire study was that they're simply, as this page, page 226 explains,

[00:19:14] Speaker 00:
There simply weren't enough links in the northern areas of the forest to collar and track.

[00:19:19] Speaker 00:
And so part of the reason for that is something that the Fish and Wildlife Service makes clear throughout its biological opinion, which is that the northern areas of the forest simply don't support high-quality links habitat.

[00:19:32] Speaker 00:
But wasn't that also because of the beetle epidemic?

[00:19:38] Speaker 00:
No, Your Honor.

[00:19:41] Speaker 00:
No, Your Honor, I don't think that the beetle epidemic was a reason for the northern area of the forest not being high quality habitat for lynx.

[00:19:50] Speaker 00:
There's statements in the biological opinion that indicate or explicitly say that it's the Fish and Wildlife Service's view that the northern portions of the forest have never supported lynx habitat in the same way that the southern portions of the forest have.

[00:20:07] Speaker 00:
Everybody, I think, agrees that the northern portions of the forest see some intermittent lynx use, and the forest service protected that use in the manner that it's used.

[00:20:17] Speaker 00:
It's a zone of connectivity between two areas where links actually breed, where they actually hunt, and that's directly linked to the high quality habitat for their primary prey, which is the snowshoe hare.

[00:20:31] Speaker 00:
The southern portions of the forest are higher altitude, they have thicker snow cover, and the snowshoe hare is more common there.

[00:20:41] Speaker 00:
And that's the basis for the conclusion that

[00:20:45] Speaker 00:
northern areas before us simply don't support the same level of habitat.

[00:20:50] Speaker 01:
Did the earlier Ivan study undercut the biops consideration of the northern low-use designation?

[00:21:03] Speaker 00:
So two points there, Your Honor.

[00:21:05] Speaker 00:
I'm not sure that the Ivan study is all that inconsistent.

[00:21:10] Speaker 00:
I think what the Ivan study shows is that there are attributes of the northern areas of the forest that Lynx might use, but it's based on older data, older satellite data that the Fish and Wildlife Service reasonably determined shouldn't be credited in light of much more recent science.

[00:21:27] Speaker 00:
What we have now is a

[00:21:30] Speaker 00:
panel of experts, state and federal biologists, to have said, we don't see- The identities of whom we don't know.

[00:21:39] Speaker 00:
That's correct, Your Honor.

[00:21:40] Speaker 00:
On the record, we don't have the identities of those individuals.

[00:21:44] Speaker 00:
But I think the important point is, the second point I was going to make here, which is that in the situation where, let's say the studies do conflict.

[00:21:51] Speaker 00:
Let's say Ivan and

[00:21:54] Speaker 00:
and the Squire study conflict, this court is obligated to defer to Fish and Wildlife's choice between those conflicting studies.

[00:22:01] Speaker 00:
That's New Mexico Farm and Livestock, cited at page 35 of our brief.

[00:22:04] Speaker 00:
And if I may also point out that I think Colorado

[00:22:10] Speaker 00:
Wild is sort of an on-point case here for this issue.

[00:22:17] Speaker 00:
We do have what I would qualify as sort of somewhat less than formal consultations here, but there's really nothing legally wrong with relying on a panel of experts as part of the premise of the study that we then use to extrapolate from.

[00:22:33] Speaker 00:
So I'd like to turn to the second issue, which

[00:22:36] Speaker 00:
that my friend on the other side raised, which was the piece.

[00:22:39] Speaker 00:
Was there a panel?

[00:22:41] Speaker 00:
I don't remember seeing the panel.

[00:22:43] Speaker 00:
I don't know that they used the word panel, Your Honor.

[00:22:44] Speaker 00:
I think it's state and federal biologists.

[00:22:48] Speaker 00:
So I wouldn't say they formally empaneled anyone.

[00:22:52] Speaker 00:
So I use that as a shorthand.

[00:22:54] Speaker 00:
And if that's unclear, what I mean is they consulted with state and federal level biologists.

[00:22:59] Speaker 01:
Is this common in the biop world?

[00:23:05] Speaker 01:
to have this kind of reference to internal communications and analysis and basically what we have here?

[00:23:17] Speaker 00:
It does happen, Your Honor, and I think it's most common in situations like this where it's

[00:23:23] Speaker 00:
a premise that I think everyone goes in agreeing on, which is that the northern areas of the forest, just as a matter of common sense, haven't supported Lynx habitat that is of high quality and will not in the future and is unlikely to continue.

[00:23:37] Speaker 00:
It's interesting because I think some of these statements were added as clarification.

[00:23:42] Speaker 00:
in the revised biological opinion, essentially because everybody went in with this understanding that this is how the forest and the links operate within the forest, that the northern areas of the forest are connectivity habitats, the southern areas are high-use habitats where they actually live.

[00:24:00] Speaker 01:
You know, that reminds me of another question I wanted to ask you.

[00:24:03] Speaker 01:
Sure.

[00:24:04] Speaker 01:
So the revised forest plan issued in 2020, defenders in September 2020

[00:24:12] Speaker 01:
noticed an intent to sue.

[00:24:14] Speaker 01:
And then there was a 2021 revised buyout.

[00:24:20] Speaker 01:
That's right, Your Honor.

[00:24:24] Speaker 01:
Was that in response to the notice of intent to sue?

[00:24:28] Speaker 00:
It was, Your Honor.

[00:24:29] Speaker 00:
And I think the supplement

[00:24:32] Speaker 00:
that we submitted makes this clear.

[00:24:34] Speaker 00:
I think it's on page four of the supplemental appendix, which there's only one volume of.

[00:24:39] Speaker 00:
It actually explains that the buy-up was revised to provide clarification on this very issue.

[00:24:43] Speaker 01:
I tell you, there's no dispute between the parties that we're looking at the 2021.

[00:24:48] Speaker 01:
No, no, Your Honor.

[00:24:50] Speaker 00:
The revised biological opinion is what's before the court.

[00:24:53] Speaker 00:
So I'd like to turn, if I may, to the species status assessment.

[00:24:58] Speaker 00:
I'd like to first point the court to page 240 of volume six.

[00:25:04] Speaker 00:
That is where the species status assessment says, and Judge Matheson, you had some questions about whether this was an area of particular or special importance.

[00:25:14] Speaker 00:
What the species status assessment says about Colorado is that it has provided at least temporarily

[00:25:22] Speaker 00:
it has provided additional redundancy.

[00:25:24] Speaker 00:
We don't have this finding that it's of some particular or special importance.

[00:25:29] Speaker 00:
I think what's equally important here is that the revised biological opinion specifically deals with this issue at page 223 of volume one.

[00:25:39] Speaker 00:
It says, we continue to believe that available information suggests that Colorado did not historically support a persistent resident lynx population, and the long-term persistence remains uncertain.

[00:25:52] Speaker 00:
That's page 223 at volume 1.

[00:25:55] Speaker 00:
And after it finishes that sentence, it then cites the 2017 species status assessment.

[00:25:59] Speaker 00:
So I think any argument that it wasn't addressed or dealt with,

[00:26:02] Speaker 00:
is incorrect.

[00:26:03] Speaker 00:
Now, I don't think that the biological opinion has to go into the same level of detail as the earlier 230 page species status assessment.

[00:26:12] Speaker 00:
This document is prepared for a different purpose, and the discussion here is sufficient to that purpose, which is to determine whether the more protective plant will cause or increase jeopardy to the Canada lynx.

[00:26:31] Speaker 00:
So unless the court has any questions, I'd be happy to rest on the brief on the two other issues since neither parties addressed those two issues today.

[00:26:39] Speaker 00:
If the court would like, I can run through those if that will.

[00:26:42] Speaker 01:
Well, I think I'd be interested in you kind of returning to this northern area again.

[00:26:47] Speaker 01:
And just to sum up, what is the core argument you're making about that?

[00:26:55] Speaker 00:
So I would say there are two points, Your Honor.

[00:26:59] Speaker 00:
is that it was a premise of the Squire study, as the revised biological opinion relates, that the northern area of the forest does not provide sufficient habitat.

[00:27:10] Speaker 00:
That's why the Squire study was not able to track lynx there, to collar them and track them.

[00:27:17] Speaker 00:
It was a premise going into that study.

[00:27:19] Speaker 00:
Now, that is supported both by the consultations that we've been talking about and also by the Theobald and Schenk study discussed at pages 32 through 34 of our brief.

[00:27:28] Speaker 00:
That's point one.

[00:27:29] Speaker 00:
Point two is, based on this reasoned discussion and analysis, it is the fish and wildlife's discretion between conflicting studies to the extent there is a conflict between Theobald and Schenck, the consultation and squires, with Ivan.

[00:27:45] Speaker 00:
It is fish and wildlife's job to judge that science in the first instance and to determine what it's going to credit and what it's not.

[00:27:53] Speaker 00:
That's New Mexico Farm and Livestock Bureau.

[00:27:56] Speaker 02:
Council, so can I just rephrase your argument?

[00:28:01] Speaker 02:
You're saying that the Squire Study assumed that it wasn't worth looking at the North.

[00:28:13] Speaker 02:
And therefore, the Squire Study does not consider the North.

[00:28:18] Speaker 02:
I mean, it doesn't consider it for a good reason.

[00:28:22] Speaker 02:
Are you not making an argument that we can extrapolate from Squires about the North?

[00:28:29] Speaker 02:
You're not making that argument.

[00:28:31] Speaker 00:
I think that the study area in the Squires study did not include the North.

[00:28:37] Speaker 00:
So to directly answer your question, no, we're not making that argument exactly.

[00:28:41] Speaker 00:
What I would say is I would quibble with assumed in this context.

[00:28:46] Speaker 00:
It is based on pretty solid science, as we've discussed in the brief.

[00:28:51] Speaker 02:
OK, it rationally assumed, I guess.

[00:28:54] Speaker 00:
That's our point, right?

[00:28:55] Speaker 00:
And it's an APA review case, so arbitrary and capricious is the standard.

[00:28:59] Speaker 02:
OK, thank you.

[00:29:04] Speaker 01:
Thank you, counsel.

[00:29:05] Speaker 01:
I think there's some rebuttal time.

[00:29:15] Speaker 03:
I'd like to address the northern areas first.

[00:29:18] Speaker 03:
Council has said that the agencies are resting, as I understand it, entirely on the consultation that occurred as a premise for the Squire study as the basis for assessing LINC's use of the northern areas.

[00:29:35] Speaker 03:
The other study that was referenced, the Theobald and Schenk study, that is not cited in the BIOP for the

[00:29:43] Speaker 03:
for the conclusions the council is drawing from it.

[00:29:45] Speaker 03:
And this court shouldn't be put in the position of interpreting the maps from the Theobald and Schenck study.

[00:29:52] Speaker 03:
I'd also like to call to your attention that Dr. Ivan's study says explicitly, we are extending the work of Theobald and Schenck from 2011.

[00:30:01] Speaker 03:
Ivan remains the best available science on this issue.

[00:30:05] Speaker 03:
The statements the council made about higher altitude and thicker snow in the southern parts of the forest

[00:30:11] Speaker 03:
That is not in the record that's being presented here today.

[00:30:14] Speaker 03:
Their argument boils down to trust us, defer to us.

[00:30:19] Speaker 03:
And when there's no basis for that deference in the record, that's antithetical to the concept of record review.

[00:30:27] Speaker 03:
And I'd note that the New Mexico farm and livestock case the council referred to, that case actually held that the critical habitat designation at issue was arbitrary and capricious.

[00:30:39] Speaker 03:
In terms of the SSA, those statements from the BIOP on page 223 of the first volume that council was referring to about how the future of LINX is uncertain, that is not a reference to those three key findings of the SSA that I outlined.

[00:30:57] Speaker 03:
In my remarks, and here's why, uncertain is not the same as a downward trajectory.

[00:31:04] Speaker 03:
And which habitat historically supported LINX

[00:31:09] Speaker 03:
doesn't have any bearing on the future outlook for Lynx, which is the focus of the Jeopardy!

[00:31:14] Speaker 03:
analysis.

[00:31:14] Speaker 03:
So for those reasons and the others that we've gone through in our briefs, this biop is arbitrary and capricious, violates the ESA and APA.

[00:31:23] Speaker 03:
Thank you very much.

[00:31:24] Speaker 01:
Thank you, counsel.

[00:31:25] Speaker 01:
Thanks to both of you for the arguments this morning.

[00:31:27] Speaker 01:
The case will be submitted.

[00:31:29] Speaker 01:
Counsel are excused.