[00:00:00] Speaker 03: Case number 24-5075, New Mexico Cattle Growers Association, Appellant, versus United States Fish and Wildlife Service, EDAL. [00:00:10] Speaker 03: Mr. Yates for the Appellant, Ms. [00:00:12] Speaker 03: Yell for the Federal Appellees, Mr. Shannon for Appellees Center for Biological Diversity, and Maricopa Odibon Society. [00:00:22] Speaker 07: Good morning, Mr. Yates. [00:00:25] Speaker 01: Good morning and may it please the court. [00:00:28] Speaker 01: Now this case is somewhat unique in that during the course of its journey from the district court to this court, a number of points of agreement appeared to have emerged and the real dispute at issue has somewhat changed. [00:00:40] Speaker 01: So I'd like to begin by briefly addressing those points of agreement and stating what I believe to be the now real dispute in issue. [00:00:49] Speaker 01: So all parties now agree that the service must apply a standard when delineating subspecies. [00:00:55] Speaker 01: All agree that the standard must be more than mere reliance on the majority opinion of taxonomists. [00:01:02] Speaker 01: All agree that the standard cannot shift arbitrarily during the course of a rulemaking. [00:01:08] Speaker 01: And all agree that the standard must, in some way, permit for replication, even if not in a strictly falsifiable sense. [00:01:16] Speaker 01: So the question now is whether the standard announced by the service, that of nonclinal geographic variation, [00:01:24] Speaker 01: is consistent with the requirements of the Administrative Procedure Act and the Endangered Species Act, and cattle growers submits that it is not. [00:01:33] Speaker 01: Now, under this standard, all acknowledge that there can be no subspecies where there exists a smooth cline. [00:01:39] Speaker 01: That is a gradual linear change in the species' character traits across its geographic range. [00:01:46] Speaker 01: Now, the reason for this is that variation upon a smooth cline is manipulable, [00:01:51] Speaker 01: It's arbitrary and it reduces what is a subspecies to a mere subpopulation of a species by arbitrarily just dividing up a smooth. [00:02:02] Speaker 04: Did cattle growers raise this argument before the district court? [00:02:05] Speaker 01: Yes, Your Honor. [00:02:07] Speaker 01: In the district court, we did brief the manipulability and the flaws in the non-clinal geographic variation standard, among other issues. [00:02:15] Speaker 04: But the question that you say is now the main question at dispute about whether relying on a non-clinal geographic, well, relying on that standard is reasonable. [00:02:27] Speaker 04: Is that something that you argued? [00:02:30] Speaker 04: I mean, it's not even really in the opening brief here. [00:02:33] Speaker 04: It's primarily in your reply brief. [00:02:35] Speaker 01: Yes, Your Honor. [00:02:36] Speaker 01: So we did argue it in terms of its inconsistency with the ESA and the APA. [00:02:41] Speaker 01: We think due to the sort of development of the issues, the issue was somewhat crystallized. [00:02:46] Speaker 01: So by the time we were on reply at this court, I think we had a firm of sense about what the real dispute was, somewhat a function of the history of this case, where there were a much broader array of disputes in the district court. [00:03:00] Speaker 07: I'm not sure. [00:03:01] Speaker 07: I'm entirely clear on what [00:03:06] Speaker 07: you are saying is the crystallized dispute. [00:03:12] Speaker 07: You said that there's no subspecies when there's a smooth climb. [00:03:20] Speaker 07: But then you said variation along a smooth climb is manipulable. [00:03:25] Speaker 07: I thought your argument was that a step climb, that one could manipulate data to show a putative step climb where there actually isn't any? [00:03:38] Speaker 01: Correct, Your Honor. [00:03:39] Speaker 01: And I think what our argument here is, is that when looking for a step climb based on the record here, [00:03:45] Speaker 01: the standard was basically incapable of demonstrating a lack of a smooth client. [00:03:50] Speaker 01: And that's where we think the manipulation is because the standard as it was applied here essentially comes down to a function of the data that the service assessed. [00:03:59] Speaker 01: So the evidentiary choices we would submit were driving the decisional standard. [00:04:04] Speaker 07: Okay, well that seems to me, if it's about the evidentiary choices, and I thought you actually had disavowed that in your [00:04:11] Speaker 07: in your reply brief. [00:04:13] Speaker 07: But to the extent that you're saying that this standard is open-ended as to what evidence might be brought to bear under it, why is it not the law that where you have a standard like that, that it's somewhat open-ended as to [00:04:32] Speaker 07: what the evidentiary body of fact is to which it applies. [00:04:36] Speaker 07: The check is that a challenger or a commenter can raise evidence that they think that the agency has failed to take into account. [00:04:46] Speaker 07: And that is the check against cherry picking on the part of the agency. [00:04:53] Speaker 01: Well, yes, your honor, but we would submit that that's a somewhat secondary question because our arguments are primarily directed towards the actual standard and the requirement of a standard. [00:05:02] Speaker 01: So our position is the standard is driven by no principle whatsoever. [00:05:06] Speaker 01: It's not really a true standard if it's entirely a function of evidentiary choices. [00:05:11] Speaker 01: So the way we're thinking about this is the service needs to set a standard in order to operate on the best available science in the record. [00:05:19] Speaker 01: So we know what we're actually seeking to prove. [00:05:22] Speaker 07: So this is exactly what I'm finding confusing about your briefing. [00:05:27] Speaker 07: It seems like, at some points, you're saying the standard doesn't allow falsification of the subspecies determination, to which I would respond, well, it does. [00:05:41] Speaker 07: It says, if it's a smooth cline, there's no subspecies. [00:05:46] Speaker 07: If it's a stepped cline, there may be. [00:05:50] Speaker 07: to the extent that you're worried about cherry picking evidence, commenters, challengers, anyone can bring in evidence and say, hey, agency, you're cherry picking. [00:06:02] Speaker 07: So that seems to me the notion that there's evidentiary choice. [00:06:09] Speaker 07: I mean, thousands of decisions, thousands of standards that agencies apply depend on selection of some subset of evidence. [00:06:19] Speaker 07: Yes, I understand. [00:06:20] Speaker 07: But then I take you to be saying, and you don't put it this way, but is it that the choice of, for shorthand, what I'll call the step-climb standard, is itself non-falsifiable? [00:06:36] Speaker 07: Is that part of your challenge? [00:06:40] Speaker 01: We think it's inherently manipulable, and there are falsifiability issues with it, because the concern is- No, no, no. [00:06:47] Speaker 07: You have to be clear for my person. [00:06:49] Speaker 07: This is the thing I'm not understanding. [00:06:50] Speaker 07: Is this applicability of the standard manipulable, or is the choice the agency made to understand subspecies in this way the thing that you're challenging? [00:07:03] Speaker 01: The latter, Your Honor, because we think understanding subspecies in this way, it renders the decision purely a function of the evidentiary choices, and it doesn't provide an overarching principle going to the issue of cometers submitting additional data. [00:07:18] Speaker 07: So it's not that they could have chosen a different standard, but they chose this one. [00:07:25] Speaker 07: And how do we tell which is the right one? [00:07:27] Speaker 07: That's not your argument. [00:07:30] Speaker 07: They could have chosen a different definition of subspecies. [00:07:34] Speaker 07: And they chose this one. [00:07:36] Speaker 07: And it has to be a falsifiable choice at that level. [00:07:43] Speaker 01: So we would concede that there are other lawful applications of the subspecies standard. [00:07:48] Speaker 01: And our argument here is that the standard they've chosen here, both in its effect and in its overarching principle, doesn't permit for falsifiability, or it's inherently manipulable and incapable of really demonstrating what the service is setting out to demonstrate, which is the existence of a step plan. [00:08:05] Speaker 01: Because again, looking at the studies in the record here, the primary studies that the service relied upon [00:08:11] Speaker 01: Sedgwick 2001, Paxson 2008, Paxson 2010, these studies all had a sampling bias in that they looked, their sampling sites were all located sort of a priori in the geographic core of the subspecies as it's historically defined. [00:08:28] Speaker 01: So they graphed the data, they determined a step climb [00:08:31] Speaker 01: But that step climb, we would submit, was purely a function of those evidentiary choices and the decision to emit intermediary data on the center of the climb. [00:08:42] Speaker 04: Mr. Yates, while you suggest that clinal variation isn't really the right standard, the evidence that cattle growers puts forward is all about whether there is clinal variation. [00:08:55] Speaker 04: So that suggests that if, for instance, the service found the zinc study persuasive, it would have reached different results. [00:09:03] Speaker 04: So the only thing, so you suggest that clinal variation is not a reasonable standard, but the only evidence that you put forward to rebut that is that there is no step line here, that there's a gradual. [00:09:18] Speaker 04: So how do we reconcile those things? [00:09:20] Speaker 01: I think our position would be that the inability to affirmatively disprove the existence of a smooth client is the issue. [00:09:30] Speaker 01: A step client or a smooth client? [00:09:32] Speaker 01: A smooth client. [00:09:33] Speaker 01: I apologize. [00:09:35] Speaker 01: The existence of a step client here or the non-existence of a smooth client is purely a function of the evidentiary choices that were made. [00:09:43] Speaker 01: So here in the record, in the particular application here, [00:09:46] Speaker 01: the decision in those studies to emit intermediary data from the center of the client. [00:09:51] Speaker 01: So sure, there's a sharp distinction you can see when this is graphed, but that's purely an artifact of those evidentiary choices. [00:09:58] Speaker 01: It's a somewhat common sense proposition that if you graph something and you emit intermediary data, the ends of that graph are going to appear to be sharply distinct, but that's a function, an artifact of those evidentiary choices. [00:10:14] Speaker 07: I don't take that to be the argument in Zink's analysis. [00:10:20] Speaker 07: Am I wrong? [00:10:22] Speaker 07: Is that exactly the argument you think he made? [00:10:24] Speaker 01: It's not the precise argument Zink made. [00:10:26] Speaker 01: Zink made a number of arguments, but I would clarify that this isn't just purely a dispute between Dr. Zink. [00:10:34] Speaker 07: I understand you to be saying that in the reply before I'm going is that I'm not sure you've put that dispute as you now describe it anywhere in the record, either administrative record or in the district court. [00:10:49] Speaker 01: So we made arguments related to the manipulability and the geographic sampling issues, evidentiary function issues of the standard. [00:10:59] Speaker 01: But we believe that the issues have somewhat crystallized by this point of the proceedings by the time we're on reply. [00:11:06] Speaker 01: Because in the district court, there were sort of broader disputes over whether the service even needs to set a sort of overarching. [00:11:12] Speaker 04: It's a nice way of characterizing the fact that a lot of these issues seem to have been forfeited along the way. [00:11:19] Speaker 01: I don't believe we forfeit them. [00:11:21] Speaker 01: I think we preserved them enough because I'm not making any point that isn't directly addressed in the briefing, although we have somewhat pivoting again as a result of the crystallization of the issues. [00:11:32] Speaker 01: But I take your honest concern. [00:11:35] Speaker 07: Mr. Yates, you mentioned a few moments ago that it's your client's position that there are other lawful definitions of subspecies that could have been used. [00:11:45] Speaker 07: Can you give me an example of what you're thinking of there? [00:11:48] Speaker 01: Yes, your honor, and to be clear, we're not directing the court to or asking the court to direct the service to say adopt one of these standards, but we do think illustrative. [00:11:58] Speaker 01: Yeah, we do think it's possible to lawfully define and non arbitrarily defined subspecies. [00:12:03] Speaker 01: I would point your honor's attention to the 75% rule. [00:12:06] Speaker 01: in which 75% of the purported subspecies is outside 99% of the range of the broader species with respect to a particular character, a defining character of variation. [00:12:19] Speaker 01: That's sort of an overlay that can exist over clinal geographic variation to qualify it somewhat. [00:12:26] Speaker 07: I'm not sure that I follow that because there you have to have [00:12:33] Speaker 07: a definition of, you have to already have differentiated subspecies from species in order to know what you're counting to come up with your 75% and your 99%. [00:12:47] Speaker 07: Am I wrong? [00:12:47] Speaker 07: So there's a little bit of a circularity there. [00:12:51] Speaker 07: Well, I think if you look at it as maybe a confirming separate layer, but you have to have some way of actually, in the first instance, determining what's a species and what's a subspecies. [00:13:03] Speaker 01: I think you would have to have a hypothesis. [00:13:05] Speaker 01: And then the purpose of the 75% rule would be to test it. [00:13:10] Speaker 07: And that's not as data manipulable, in your view, as the standard that the service employed. [00:13:19] Speaker 01: provided that the investigator looks at all of the available data across geographic range. [00:13:25] Speaker 01: And that's where the sort of 99, 75 distinction comes in because it forces you to look at the entire client rather than omitting particular data. [00:13:37] Speaker 06: You mentioned that you're not requiring us to adopt any particular definition of species or subspecies, but have you offered any type of alternative definition [00:13:51] Speaker 01: Yes, Your Honour. [00:13:54] Speaker 01: We would submit that the 75% rule is lawful. [00:13:58] Speaker 01: We don't think that it's mandatory for it to be applied here. [00:14:02] Speaker 01: But again, for illustrative purposes, I suppose we point that out to note that this question is answerable. [00:14:07] Speaker 01: It's not a question of sort of pure scientific uncertainty. [00:14:10] Speaker 01: There are standards that exist in the literature which we believe do satisfy the requirements that we're setting forth. [00:14:18] Speaker 06: But I guess I'm asking, are you being specific enough with respect to having not forfeited? [00:14:25] Speaker 06: Like, have you affirmatively put out a specific standard and the criteria that you want us to use with respect to delisting this particular species? [00:14:37] Speaker 01: So we're not asking the court to direct the delisting of this species. [00:14:42] Speaker 01: The remedy that we've requested just as a function of the ESA's petition requirements, it's quite a narrow remedy. [00:14:48] Speaker 01: We're essentially asking the court to remand this to the Fish and Wildlife Service for them to do notice and comment essentially again or another rulemaking to applying a non-arbitrary standard, which I think that's where this court's guidance would come in to ensure that [00:15:08] Speaker 01: going forward with this particular species, they're acting in a lawful manner. [00:15:13] Speaker 06: But did you, during the rulemaking and comment period, offer that as a comment, even during that time? [00:15:22] Speaker 01: In the petition, we didn't set forth any particular standard. [00:15:25] Speaker 01: We identified flaws in what the current data the service has relied upon, and I think that's really the issue in this case. [00:15:34] Speaker 01: state that this isn't a sub rosa litigation over the services having to set forth an overarching or broad standard to apply to all species. [00:15:44] Speaker 01: That's not what we're asking for here. [00:15:46] Speaker 07: I have a very specific question, which is in your brief, what do you mean [00:15:56] Speaker 07: by the statement that the nonclinal geographic variation standard is incapable of demonstrating mean differences at the population level? [00:16:09] Speaker 01: Essentially that it's a function of individuals and individual data sampling choices as opposed to an overarching choice like say something like the 75% rule, which helps you to actually graph the entire population of the species. [00:16:23] Speaker 01: position is essentially the way this standard was applied here. [00:16:27] Speaker 01: Again, due to those sort of data sampling issues, the fact that you could always find variation between individual birds, that's a manipulability issue and the lack of a sort of mean difference at the population level. [00:16:41] Speaker 07: Mean difference at the population level? [00:16:44] Speaker 07: Mean difference between what and what? [00:16:46] Speaker 07: The species and the subspecies? [00:16:47] Speaker 01: between the subspecies and its neighboring subspecies or the broader species? [00:16:53] Speaker 07: That is what the standard is designed to do. [00:16:55] Speaker 07: And the manipulability that you posit, I'm just not entirely following. [00:17:01] Speaker 07: Because what I understand is done is that every bird of, let's say, the umbrella species [00:17:10] Speaker 07: that is reported or as to which there is data is accumulated and its location. [00:17:19] Speaker 07: So the geography is part of the definition here about capable of interbreeding but not interbreeding across discernible geographic boundaries. [00:17:36] Speaker 07: that they are looking at all the data, and that they are determining, if you try to chart on the geographic areas, that there are, in fact, discernible differences that can't be manipulated away. [00:17:50] Speaker 07: If you looked at people who live in Quebec versus people who live in the Northeastern United States, and you graph what languages they speak, you're going to [00:18:02] Speaker 07: find that the people north of the border, more of them speak French. [00:18:06] Speaker 07: And the people south of the border, fewer of them speak French. [00:18:09] Speaker 07: And you can tell that there are different language populations based on that. [00:18:16] Speaker 07: And so I guess I'm just not understanding the theoretical, the manipulability problem that you identify if there's something different about what's going on here that I'm not understanding. [00:18:28] Speaker 01: I understand, Your Honor. [00:18:30] Speaker 01: I think that to go to your hypothetical related to language differences, I think that's something somewhat easier to test because it's something of a result of [00:18:40] Speaker 01: You know jurisdictional limits and whatnot and you're only looking for one thing which is which is language as opposed to hear your attempt to graph multiple things making choices multiple character traits. [00:18:49] Speaker 01: So diamond 2016 for example said I'm going to look at one particular variation in plumage coloration for the southwest and will apply catcher zinc 2017 [00:19:01] Speaker 01: looked for six. [00:19:02] Speaker 01: So there's a sampling choice, and lo and behold, they both came to polar opposite conclusions regarding the existence of a subspecies. [00:19:11] Speaker 01: And we will note, and again, not touting zinc as the sort of end-all and be-all or the ultimate correct answer, but Dr. Zinc did look more holistically at the data that was available. [00:19:22] Speaker 01: And he determined that there was no way to find a true stepcline across the Southwest Miller flycatchers range and through its integration zone. [00:19:32] Speaker 07: So I'm sure I'm going to butcher this, but the zinc took the plumage and the song and the genetic, the various axes of differentiation, and looked at them all together and said that the statistical stepcline disappeared when you did it that way. [00:19:51] Speaker 01: Correct. [00:19:52] Speaker 01: That's essentially the conclusion of both studies. [00:19:57] Speaker 06: I was going to say, but even placing the standard aside, I didn't see you address these ecological distinctions between subspecies and other populations of the willow flycatcher. [00:20:12] Speaker 01: Yes, Your Honor, so our brief contains some discussions on the dispute between thimer and zinc, both in the background and in the argument, and it also contains a discussion of Sedgwick Pax and both Paxton studies as well as the UNIT study to draw out this point regarding sort of geographic manipulability and nonclinal geographic variation. [00:20:36] Speaker 01: that can be found in the opening brief towards the latter portion of the argument, the falsifiability subheading, and also in reply. [00:20:45] Speaker 07: Make a constitutional avoidance argument based on non-delegation, but you don't have a challenge to the statute. [00:20:59] Speaker 07: I'm not sure how the constitutional avoidance argument comes in. [00:21:05] Speaker 01: I take your point, Your Honor. [00:21:06] Speaker 01: I think a response to that would be that we have an arbitrary and capricious contrary to law claim in the complaint. [00:21:13] Speaker 01: That's essentially what we briefed. [00:21:15] Speaker 01: And there are, due to the sort of mixed question of law and fact that we think is present here, this question of, well, what does the law in the ESA require with regard to a standard? [00:21:24] Speaker 01: And then how is that standard applied to the data in the record? [00:21:27] Speaker 01: We think that the avoidance argument comes in under a sort of statutory challenge, a contention that the ESA requires more with regard to a standard setting requirement. [00:21:39] Speaker 07: So am I right that the argument you're making is that you wouldn't make a facial challenge to the statute that the term subspecies [00:21:53] Speaker 07: is constitutes an unconstitutional delegation from Congress to the agency, because in your view, there are ways to interpret that, that hue more closely to its real meaning, and therefore, [00:22:17] Speaker 07: no facial non-delegation problem, but that to the extent that the service is permitted to understand subspecies in the way it has, that category of understandings, the non-falsifiable choice of subspecies [00:22:40] Speaker 07: operationalizing the standard. [00:22:43] Speaker 07: If that's allowed, then anything goes, then that understanding of the statute is a delegation problem. [00:22:50] Speaker 01: Yes, Your Honor, that's essentially our argument that if the standard renders hypotheses, nothing more than a self-fulfilling prophecy, a sort of I know it when I see it type standard, which is essentially our argument boiled down, then that becomes to interpret the ESA in that manner would raise non-delegation issues because the service is essentially making it up as it goes and not conducting itself according to any sort of overarching standard or principle to cabin its discretion. [00:23:18] Speaker 04: Mr. Yates, though, I'm not aware that the cattle growers brought a contrary to law argument, either in the district court or here. [00:23:27] Speaker 04: It seems the whole argument is about arbitrary and capricious review, so not about contrary to law review. [00:23:34] Speaker 04: And an agency can't cure a non-delegation problem by binding itself to a reasonable understanding. [00:23:43] Speaker 04: Either the statute is an impermissible delegation or it's not. [00:23:48] Speaker 04: That legal question is irrespective of how the agency chooses to interpret the statute. [00:23:53] Speaker 04: So I'm not sure that your argument is preserved, again, in any way. [00:23:58] Speaker 04: And I'm not really sure I understand what's being advanced here. [00:24:04] Speaker 01: I understand your honor. [00:24:05] Speaker 01: So the sort of contrary law element of our arbitrary and capricious claim, it comes in when we start talking about there's a mixed question of law and fact that is here. [00:24:13] Speaker 01: What are we really arguing over? [00:24:15] Speaker 01: The service [00:24:16] Speaker 01: seems to conceptualize this as being in sort of pure state farm territory. [00:24:20] Speaker 01: We think that there is a statutory component here because we're addressing our arguments towards the standard or rule mandated by the APA and the Endangered Species Act to act in the sort of second arbitrary and capricious phase of the decision making here. [00:24:36] Speaker 04: Where in your brief, even in your opening brief here, do you make a contrary to law challenge? [00:24:41] Speaker 01: I mean, if you look in the standard of review, we address the... That's not an argument. [00:24:48] Speaker 01: So we look in the standard of review and then our arguments related to falsifiability and the sort of arbitrariness of the standard, they're largely directed towards that pre-existing standard, which we do contend is contrary to law, even if not in the most crystallized terms. [00:25:11] Speaker 06: I would also suggest that when you're asking us to look at the science, it seems as if you're trying to have us make a determination about the science instead of us actually determining if the science supports the conclusions reached. [00:25:29] Speaker 06: And generally, we would defer to the experts in that regard, not us determine if the science is actually correct. [00:25:40] Speaker 01: Yes, Your Honor. [00:25:41] Speaker 01: So I think our position is that the standard as it was applied here is incapable of supporting the conclusion reached for various reasons related to its manipulability and arbitrariness, although we don't ask the court to make a determination as to what the experts should find on remand, just to address the sort of overarching decisional standard or framework within which the experts are to marshal their expertise. [00:26:09] Speaker 07: How can you say, and I'm not trying to be tendentious, I really am trying to understand how you can say that the standard as applied is incapable of supporting the conclusion reached in light of a 90-odd page report by the service explaining how it supports the conclusion reached. [00:26:36] Speaker 01: So we think it comes down to the standard that was applied at the top of that 90 page finding. [00:26:42] Speaker 01: If there's a concern or an arbitrariness, manipulability issue with the standard, then everything that follows is not going to prove what ultimately must be proven. [00:26:54] Speaker 07: I have one other question, which is, you make an argument about [00:26:59] Speaker 07: that arises out of the Congress's amendment of the statute to replace the terms smaller taxa with the term distinct population segment. [00:27:12] Speaker 07: And I wasn't sure that I was tracking what you were getting out of that. [00:27:16] Speaker 07: Can you explain what we should draw from the services or the Congress's treatment of distinct population segment? [00:27:25] Speaker 01: Yes, your honor. [00:27:26] Speaker 01: So assuming our argument is correct, correct related to the manipulability of the standard applied here. [00:27:33] Speaker 01: And if the standard is incapable of disproving a smooth client, then any subspecies determination ends up basically being a sort of arbitrary geographical [00:27:44] Speaker 01: divvying up of that smooth client, as opposed to anything else. [00:27:49] Speaker 01: And our position is that when that occurs, you're essentially reducing what is a subspecies to a mere subpopulation of a species, just a population below the species level. [00:28:01] Speaker 01: The smaller taxa versus DPS issue, and you're correct, in 1978, the ESA was amended to remove that smaller taxa, essentially subpopulation type language, and replace it with the more specific and demanding DPS concept. [00:28:17] Speaker 01: So that's the argument sort of fleshed out. [00:28:21] Speaker 07: So it doesn't really depend on the shift in language, because you still had these three buckets under both the earlier and the later statute. [00:28:29] Speaker 07: And the question is, [00:28:32] Speaker 07: And I thought that Congress treats all of those as things that could be threatened or endangered. [00:28:37] Speaker 01: Yes, Your Honor, but no longer small attacks of DPS instead. [00:28:41] Speaker 07: Right. [00:28:42] Speaker 07: And so a distinct population segment, you said that a subspecies could be just a population segment, and therefore actually falling on a smooth climb. [00:28:57] Speaker 07: But the statute talks about a distinct population segment, which [00:29:02] Speaker 07: I'm not sure what the meaning of it is, but I guess I'm just not following what this language argument adds to your general argument that you think that data is manipulable and that depending on how many variables you choose to combine or not, you're going to have smooth climb versus step. [00:29:21] Speaker 01: Yes, Your Honor. [00:29:22] Speaker 01: So we think that a subpopulation, the sort of smaller taxa, is a broader expression than distinct population segment. [00:29:31] Speaker 01: Congress amended the ESA in 1978 to remove the smaller taxa language, and it replaced it with this distinct population segment language. [00:29:39] Speaker 01: So we think anything below the subspecies level, smaller taxa, it has to meet the DPS requirements now in order to be listed. [00:29:48] Speaker 01: Again, taking our argument as true, subpopulation, subspecies becomes a subpopulation, and that's an issue under the Endangered Species Act because they're essentially listing smaller taxa without the rigor of the DPS standard. [00:30:02] Speaker 07: Why isn't a subspecies still a subspecies and a smaller taxa becomes a distinct population segment? [00:30:08] Speaker 07: I'm not sure why you're moving around the priority of those three terms. [00:30:12] Speaker 01: So the service can no longer list smaller taxa. [00:30:16] Speaker 07: Right. [00:30:17] Speaker 07: But they can list distinct population segments? [00:30:19] Speaker 01: Correct. [00:30:20] Speaker 01: According to their 1996 policy, which is lengthy and has a lot of requirements and standards and things of that nature, it would, in short, would require more than divvying a smooth client in an unqualified manner. [00:30:33] Speaker 01: Because it's essentially a legal standard. [00:30:39] Speaker 07: All right. [00:30:40] Speaker 07: Thank you. [00:30:41] Speaker 01: Thank you. [00:30:41] Speaker 01: I appreciate it. [00:30:50] Speaker 07: Ms. [00:30:50] Speaker 07: Yowell for the Federal Appalooz. [00:31:11] Speaker 05: May it please the court. [00:31:13] Speaker 05: Kettle growers makes clear today that its complaint here is with the methodology that the service has used to determine whether the southwestern willow flycatcher was a valid subspecies. [00:31:24] Speaker 05: I will discuss why that methodology and the services decision explaining it is reasonable and reasonably explained in a minute. [00:31:33] Speaker 05: But first, I want to note that cattle growers did not take issue with the methodology in its petition for delisting. [00:31:39] Speaker 07: Which methodology are you referring to? [00:31:41] Speaker 05: Sure, Your Honor. [00:31:43] Speaker 05: The service's decision to look for non-clinal variations across the geographic range. [00:31:50] Speaker 05: And by non-clinal, I just mean abrupt or sharp distinctions versus like smooth or gradual distinctions. [00:31:58] Speaker 05: So Cattle Growers petition acknowledged that avian taxonomists look at these types of variations and certain traits. [00:32:06] Speaker 05: And the petition simply argued that a new analysis of the data showed that there were no abrupt variations that would suggest that the subspecies was valid. [00:32:17] Speaker 05: Now, cattle growers are saying that the service shouldn't have looked at these types of variations at all. [00:32:22] Speaker 05: But cattle growers never raised this criticism in its petition, in any supplement to its petition, or in any comments to the agency. [00:32:29] Speaker 05: It has thus forfeited the opportunity to seek judicial review of its claim [00:32:34] Speaker 05: under this court's decision and advocates for highway and auto safety. [00:32:38] Speaker 07: I'm not sure that it's presented here, but to the extent that cattle growers is challenging the services decision to use the, I'll just shorthand it as the step climb standard. [00:32:59] Speaker 07: Is that an evidentiary standard? [00:33:02] Speaker 07: Or how does the service decide that that is the right way to implement the statutory term subspecies? [00:33:13] Speaker 05: Sure, Your Honor. [00:33:14] Speaker 05: So I would call it a methodology, looking for these step-climb variations. [00:33:20] Speaker 05: And I think it's helpful to think about this in two steps. [00:33:23] Speaker 05: So when the service looks to determine whether something is a subspecies, it marshals the best scientific evidence in two steps. [00:33:32] Speaker 05: It looks at standard taxonomic distinctions and criteria for determining the specific subspecies at issue. [00:33:39] Speaker 05: Here we're looking at avian subspecies or specifically the willow flycatcher. [00:33:43] Speaker 05: And then once those criteria are determined and explained, then the service looks at the best available science to determine whether those criteria are met. [00:33:54] Speaker 05: And here the service explained at JAA 583 that these step clients have been the prevailing methodology that avian taxonomists have looked at since the 1800s. [00:34:05] Speaker 05: And it's also the methodology that zinc 2015 and cattle growers petition applied. [00:34:12] Speaker 05: And you can see that at JAA 479 and JAA 486. [00:34:17] Speaker 07: To the extent that there's a question about how to apply that prevailing methodology, for example, whether to combine all the different variables and then chart the step or the [00:34:36] Speaker 07: line versus to do the characteristics separately. [00:34:41] Speaker 07: Is that something that the service has looked at? [00:34:45] Speaker 07: Is there prevailing methodology or do you just think that's not been raised in the administrative record in this case? [00:34:50] Speaker 05: Yeah, I'm not sure that that challenge has been raised in the administrative record with that specificity. [00:34:56] Speaker 05: So if you look at cattle growers petition and the zinc 2015 study, like the main source of disagreement here is that [00:35:05] Speaker 05: So first, I'll note that Zink looked at the existing data that the service has been looking at since the 1990s and the early 2000s. [00:35:15] Speaker 05: Zink just reanalyzed that data. [00:35:18] Speaker 05: And his main argument was that the service, for example, let me make this more concrete. [00:35:25] Speaker 05: Like when the service is looking at the color of the feathers of the bird, Zink said that [00:35:31] Speaker 05: One criticism was that the service didn't include certain samples from boundary birds. [00:35:37] Speaker 05: So birds that were at the boundary of the subspecies line between the southwestern willow flycatcher and then the northern subspecies. [00:35:46] Speaker 05: And he said that once you include those boundary birds, then there's a more, there's that smooth climb, the more gradual change instead of the abrupt change. [00:35:57] Speaker 05: that Paxton 2010 had found. [00:36:00] Speaker 05: And the service confronted that criticism and talked about it and pointed out the fact that there was another study, the Thimer study in 2016, that looked at the same data that zinc looked at included the boundary birds that zinc said should have been included. [00:36:19] Speaker 05: and found that there were these stuck lines or these abrupt variations in the bird feather colors. [00:36:25] Speaker 05: So what you have is the exact same data and just a different interpretation of the data. [00:36:30] Speaker 05: And as long as the service's decision was reasonably and reasonably explained, it is entitled to choose one interpretation over the other. [00:36:40] Speaker 05: And this court's precedent is very clear that just a disagreement with how the data is interpreted is not arbitrary and capricious. [00:36:48] Speaker 06: You mentioned that the service uses the best available data, but are you, and don't seem to specifically state a standard by name, but are you implicitly using the non-clinical geographical variation standard? [00:37:04] Speaker 05: Yes, you're on us. [00:37:06] Speaker 05: So the service looked to the best available science to determine what the prevailing methodology is for determining whether an avian subspecies or whether a certain group of birds as a subspecies. [00:37:21] Speaker 05: And here scientists have been looking for these sorts of variations and [00:37:25] Speaker 05: feather color, in genetics, in song patterns for over 70 years. [00:37:31] Speaker 05: And so the service determined that that methodology for this particular subspecies was the best available science, was the best available methodology. [00:37:43] Speaker 05: And then the service, after it set the methodology, then the service again looked at the best available science to see if that criteria was met. [00:37:51] Speaker 06: I guess what I'm asking is, are you implicitly [00:37:54] Speaker 06: I'm categorizing this as the non-clinical geographical variation standard without explicitly stating that. [00:38:06] Speaker 06: In other words, are you giving it a name in terms of what your methodology is versus just going to the best available science and then kind of defragmenting from there? [00:38:18] Speaker 05: Yes, Your Honor. [00:38:19] Speaker 05: If you look at J.A. [00:38:20] Speaker 05: 583, the service specifically outlined this methodology and said that this was the methodology that was supported in the science and it was the methodology that it was applying. [00:38:30] Speaker 05: And then in the pages onwards, the service, you know, applied it into each specific trait. [00:38:37] Speaker 05: But I will note the service applied this methodology only to the Southwestern Willow Flycatcher. [00:38:43] Speaker 05: And that's important because [00:38:45] Speaker 05: This science applies different sorts of methodologies to determine different sorts of subspecies across taxa. [00:38:54] Speaker 04: I was wondering if at the time the service made its finding, were there comments about the fact that nonclinal variation is just a method that is imprecise or as a methodology that it has problems? [00:39:12] Speaker 04: Or is that methodology itself well enough established? [00:39:16] Speaker 05: I don't remember seeing any comments in the record, and cattle growers certainly hasn't pointed to any that are there. [00:39:22] Speaker 05: Cattle growers did not raise a general argument about that. [00:39:24] Speaker 04: No, Your Honor. [00:39:25] Speaker 04: And in the zinc study, it seems some of the, and tell me, I mean, the difference between zinc and some of the other studies is whether or not there is a step climb or gradual climb. [00:39:38] Speaker 04: Exactly. [00:39:38] Speaker 04: It's not, zinc doesn't challenge the methodology of looking for clime. [00:39:45] Speaker 04: Is that correct? [00:39:46] Speaker 04: Or looking for step lines? [00:39:47] Speaker 05: Exactly, Your Honor. [00:39:48] Speaker 05: So I think that really illustrates that what, although cattle growers is framing its challenge as a methodology problem, what it really is is a hypothetical data problem. [00:39:58] Speaker 05: And cattle growers hasn't pointed to any data that the service here has missed or has, you know, manipulated at all. [00:40:06] Speaker 05: It just has a different interpretation of the data that everyone agrees, you know, has been the data that scientists have been looking at for the last few decades. [00:40:20] Speaker 06: And you seem to indicate that with respect to this subspecies of the flycatcher that you may look at some revisions in the future. [00:40:29] Speaker 06: And I know that you do your five-year review, but can you tell us a little bit about what were you anticipating in terms of any issues with respect to this subspecies? [00:40:39] Speaker 05: Sure, your honor. [00:40:41] Speaker 05: So as our brief noted, taxonomy is constantly changing, as is all science. [00:40:47] Speaker 05: And in this particular area, the service and its study flagged some areas for future study. [00:40:54] Speaker 05: And I think as in all taxonomy fields right now, more genetic data could be on the horizon. [00:41:02] Speaker 05: And that could really help crystallize a lot of different subspecies. [00:41:06] Speaker 05: And so in the future, I would [00:41:08] Speaker 05: expect if the science is collecting new data that I would expect a renewed focus on the genetic data. [00:41:15] Speaker 05: But the service looked at the available existing genetic data here and determined that the genetic data supported these abrupt variations in the feather color as well as the [00:41:29] Speaker 05: the song patterns. [00:41:31] Speaker 05: And I'll note that not only are there these variations in the three traits, the song patterns, the feather color, and the genetics, but the variations break at almost exactly the same geographic line. [00:41:43] Speaker 05: And so the combination of the fact that there are these abrupt variations and they're breaking at a similar line, the service found strongly suggested that this was a subspecies. [00:41:53] Speaker 07: So to the extent that Zink, in his study, graphs the data and finds a smooth climb, can you give us any sort of layperson's appreciation of your understanding of how that could have happened? [00:42:10] Speaker 05: Your Honor, there's a lot of discussion in the record about whether Zink correctly graphed the data. [00:42:17] Speaker 05: So Thimer, for example, talks about how he doesn't think that Zink [00:42:21] Speaker 05: graphed the data correctly, and the service talks about that at JA594. [00:42:26] Speaker 05: But my best lay understanding of this is that Zink was saying, look, if you include these samples of birds at the boundaries, then the data shows a smoother climb than these abrupt step climbs that we're looking for. [00:42:45] Speaker 05: And again, the service found based on THIMER 2016, as well as plenty of other studies in the record, that Zinc was misinterpreting the data. [00:42:58] Speaker 07: Seems like if you have a step line that, depending on whether you look at the boundary birds, that it could either [00:43:15] Speaker 07: turn a corner into the steeper part of the graph or curve into the steeper part. [00:43:24] Speaker 07: But in either case, if the data on either side, the core of subspecies A and the core of subspecies B, there's going to be a non-linear [00:43:38] Speaker 07: a gap between those two that is at a steeper angle than the distance between them is capable of reflecting. [00:43:47] Speaker 07: So I guess I think that's my common sense understanding. [00:43:53] Speaker 07: Does that seem right to you? [00:43:53] Speaker 05: Yes. [00:43:54] Speaker 05: I'm not a scientist or a graph expert, but that seems right to me, Your Honor. [00:43:59] Speaker 05: You explained it much better than I did. [00:44:01] Speaker 05: And I think to the extent that it's helpful, I think looking at the Cattle Growers Reply Brief on page 15 really kind of crystallizes the issues here. [00:44:17] Speaker 05: So Cattle Growers does these two hypothetical figures to kind of explain what it's talking about. [00:44:24] Speaker 05: And it says that the top one, [00:44:28] Speaker 05: is a valid step client and thus a valid methodology and a valid way to determine species. [00:44:33] Speaker 05: But the bottom, it says, is not a valid way to determine species because there's this missing data. [00:44:40] Speaker 05: And I think that that really shows that it's not a methodology problem because cattle growers admits that the methodology is correct in the first graph. [00:44:51] Speaker 05: It's really a missing data problem. [00:44:53] Speaker 05: And here, cattle growers just hasn't been able to put forward any data [00:44:57] Speaker 05: that the service missed or overlooked or didn't talk about. [00:45:00] Speaker 05: And as this court found in American wild lands, that's their burden. [00:45:06] Speaker 05: If they want to show that it's arbitrary and capricious, the path forward is to show the data. [00:45:11] Speaker 05: It's not to do an attack on methodology. [00:45:14] Speaker 05: And as an aside, these figures are just illustrative. [00:45:20] Speaker 05: They're not in the record. [00:45:21] Speaker 05: But I do think that they clearly show the problem with cattle growers' argument here. [00:45:27] Speaker 07: But they also aren't analogous, because point A prime and B prime are in different locations in the two graphs. [00:45:35] Speaker 07: And if they weren't, if the poor data on the two subspecies A and subspecies B were accepted, then it sort of doesn't matter how the data in between is [00:45:58] Speaker 07: graft would matter whether there is just a constant kind of gradual shift among the entire population as distinct from a break. [00:46:13] Speaker 07: And it just seems to me that that is susceptible of [00:46:16] Speaker 07: falsification, it's susceptible of testing by data, it's susceptible of retesting, of questioning inadequate data that might have shown an illusory step. [00:46:29] Speaker 05: Yeah, I completely agree with you, Your Honor. [00:46:32] Speaker 05: And that's what Zink is purporting to do. [00:46:35] Speaker 05: He's purporting to show that a reanalysis of the data would show that the services conclusions were wrong. [00:46:43] Speaker 05: And again, [00:46:44] Speaker 05: The service thoroughly discussed zinc and his conclusions and decided that those were not the best available science. [00:46:52] Speaker 07: Categorists argued that the service relied on two other standards besides nonclinal geographic variation, that it applied a majority opinion standard and a just sort of top line best scientific and commercial data standard. [00:47:09] Speaker 07: What's your response there? [00:47:10] Speaker 05: Yes, your honor. [00:47:11] Speaker 05: They make those arguments. [00:47:13] Speaker 05: The service didn't rely on a majority counting of experts standard. [00:47:19] Speaker 05: In fact, the quote that cattle growers uses there is a cherry picked quote from the original listing and actually the word majority doesn't even appear. [00:47:28] Speaker 05: in the services finding here. [00:47:30] Speaker 07: Although you mentioned yourself today that the step climb analysis is the prevailing taxonomic methodology for discerning subspecies. [00:47:46] Speaker 05: Yes, your honor. [00:47:46] Speaker 05: That definitely lends support to the service's conclusion here that, you know, scientists have been looking at this type of methodology for the last 70 years, and Zink himself is looking at that methodology. [00:48:00] Speaker 05: But the service chose that methodology for more than just the fact that, like, you know, [00:48:09] Speaker 05: Five scientists applied it, and one didn't. [00:48:12] Speaker 05: Like here, every single scientist that the service is looking at applied this methodology. [00:48:16] Speaker 05: And the service had very good reason for choosing that. [00:48:20] Speaker 05: It wasn't just an arbitrary numbers counting reason. [00:48:24] Speaker 05: And then as for the best available science, again, the Congress directed the service to rely on the best available science. [00:48:34] Speaker 05: I think it's helpful to think of it as being in two steps. [00:48:37] Speaker 05: First, to look at the science to determine the methodology. [00:48:40] Speaker 05: And then second, to look to see whether the criteria is met. [00:48:44] Speaker 07: You'd embrace the appropriateness of looking at best available science, not necessarily data, but sort of scientific framework. [00:48:51] Speaker 05: Absolutely. [00:48:52] Speaker 05: First step. [00:48:53] Speaker 05: Yes. [00:48:53] Speaker 05: And if you look at the court's decisions on the Polar Bear ESA listings, the Schaeffer case, the Southwestern Center for Biological Diversity case, [00:49:02] Speaker 05: All of those cases stand for the proposition that the service isn't required to adopt like a perfect methodology, but that methodology must be reasonable, reasonably explained and supported by the science. [00:49:15] Speaker 05: And I believe the record clearly shows that that standard has been met here. [00:49:25] Speaker 00: Thank you. [00:49:37] Speaker 07: Good morning, Mr. Shannon. [00:49:38] Speaker 02: Good morning. [00:49:39] Speaker 02: I believe my colleague addressed many of the points that I would have addressed this morning, but I just want to offer a couple of specific answers to questions that you raised. [00:49:49] Speaker 02: Judge Rao, you asked about the validity or persistence of nonclinal variation as a way of delineating subspecies, and I would point your attention to a quote at JA583. [00:50:01] Speaker 02: Quote, the persistence of the subspecies category since the mid-1800s, as described by Remsen 2010, is driven by the perception that the category that we term subspecies can include within it named subpopulations to identify nonclinal geographic variation. [00:50:18] Speaker 02: And then, following a parenthetical, it goes on to say, some systematists recognize subspecies only if there's a narrow geographic region of change in character, a step-climb. [00:50:29] Speaker 02: And I think that's what the best available science shows here with the services finding and theme are at all demonstrating a step client based on morphology and genetics. [00:50:40] Speaker 02: And I'll note that although there has been some shift in appellants arguments throughout the course of this briefing on page 12 of their brief, they concede that step client change across the geographic [00:50:58] Speaker 02: range of a species indicates the existence of a subspecies. [00:51:03] Speaker 02: And the best available science here shows that. [00:51:06] Speaker 02: I think they also suggest that the standard is somehow capable of manipulation. [00:51:12] Speaker 02: What I think they fail to show is that there has been any manipulation here. [00:51:17] Speaker 02: Under the best available science standard, the service goes out and it surveys [00:51:21] Speaker 02: available scientific data. [00:51:23] Speaker 02: It doesn't have to conduct its own studies, and it didn't conduct any of its own studies here. [00:51:27] Speaker 02: So it's just looking at all of the scientific data that is available to it, including the data presented by appellants attempting to disprove step client or nonclinal variation, and assesses the validity of that. [00:51:41] Speaker 02: And then its expertise comes to a conclusion based on [00:51:46] Speaker 02: the weight of the scientific evidence, which they did so in their well-reasoned 91 page denial of the delisting petition. [00:51:55] Speaker 02: I'm happy to address any other questions. [00:51:56] Speaker 07: So I should have asked this of the service, but I wonder if you can help me understand the role of the statutory protection of any distinct population segment. [00:52:10] Speaker 07: I wasn't entirely clear on whether there was any debate about that. [00:52:14] Speaker 07: I know it's not directly an issue, but I thought it was being brought in as kind of a tool for broader statutory interpretation, and do you have [00:52:22] Speaker 07: any sense of what role that plays, or has the service kind of sidelined that, and what the argument is in this case? [00:52:32] Speaker 02: Yes, Your Honor. [00:52:32] Speaker 02: I think it's necessarily sidelined because the service was making a determination about whether or not it was a valid subspecies. [00:52:40] Speaker 07: But I mean, have they sidelined it in general, or are there endangerment or threat evaluations that they've made with respect to distinct [00:52:53] Speaker 02: Well, they've certainly listed species based on the DPS policy in the past. [00:52:59] Speaker 02: I think the most common example would be actually with nymphs. [00:53:02] Speaker 02: Most cell-modded species are listed under the DPS policy because there's ecologically distinct units. [00:53:11] Speaker 02: But looking at the cell-modded species, salmon. [00:53:19] Speaker 02: I think the main distinction to draw between species, subspecies and DPS is that species and subspecies are recognized taxonomic terms. [00:53:30] Speaker 02: There might be debate about the exact definition of that taxonomic term within different taxa, but it is a recognized taxonomic delineation [00:53:41] Speaker 02: DPSs are entirely a creature of statute. [00:53:46] Speaker 02: They were designed by Congress to give the service the authority to list distinct population segments of species or subspecies so that that geographic area could be provided protection while the wider range was doing well. [00:54:05] Speaker 02: This isn't in our briefing because this issue wasn't directly addressed. [00:54:08] Speaker 02: But if you go and look at the legislative history, [00:54:11] Speaker 02: They use the American alligator as an example. [00:54:15] Speaker 02: In that case, the American alligators, I may invert this, but I think I've got it right. [00:54:20] Speaker 02: The American alligator's population in Florida was tanking. [00:54:24] Speaker 02: And so they wanted to be able to protect the American alligator in Florida, but it was doing fine in Mississippi and Louisiana. [00:54:31] Speaker 02: So they provided them [00:54:32] Speaker 02: with this ability to list a distinct population segment, even though, well, let's say for the sake of argument that the American alligator wouldn't be delineated as a subspecies under taxonomic determination. [00:54:49] Speaker 07: Got it. [00:54:49] Speaker 07: But not an issue here. [00:54:50] Speaker 07: Got it. [00:54:53] Speaker 02: Thank you, Your Honor. [00:55:04] Speaker 07: All right. [00:55:05] Speaker 07: Did Mr. Yates reserve any time for? [00:55:07] Speaker 03: He reserved two minutes. [00:55:09] Speaker 07: All right. [00:55:10] Speaker 07: So we've used up more than that time, but we were active questioners. [00:55:13] Speaker 07: If you'd like to take the two minutes for a bottle, you may have it. [00:55:17] Speaker 07: But you don't have to take it. [00:55:19] Speaker 01: I will keep it very brief and just address the exhaustion of waiver issue related to the challenge in nonclinical geographic variation. [00:55:29] Speaker 01: or the methodological concerns related to that. [00:55:32] Speaker 01: So I would point your Honor's attention to JA547 of Zinc 2017, where he directly makes this... JA527 or 47? [00:55:41] Speaker 07: 47. [00:55:42] Speaker 01: So that's the first. [00:55:46] Speaker 01: He directly refers to the non-climate geographic variation standard and the possibility of manipulation as the bane of subspecies descriptions due to similar reasons we've outlined here. [00:55:58] Speaker 01: Remsen, which I don't have the JA site before me, but it's in the briefing, I think at maybe 479. [00:56:05] Speaker 01: No, 356 also raises sort of broader theoretical concerns about delineating subspecies and manipulation. [00:56:15] Speaker 01: I'll make a second point. [00:56:16] Speaker 04: Is that point also reflected in the comments that category was raised before the agency? [00:56:23] Speaker 01: Well, you know, your honor, so that goes to my second point is as my petition for delisting. [00:56:29] Speaker 01: So the cattle growers only submitted a petition for delisting and that that's what triggered the the rulemaking here. [00:56:35] Speaker 01: And I will note, as my my friend has noted, there are many, many ways to delineate subspecies. [00:56:41] Speaker 01: So cattle growers, when it's submitted as rulemaking petition after this hadn't been analyzed since 1996, [00:56:46] Speaker 01: wasn't in a position to sort of predict through a crystal ball the precise standard that the service was going to apply. [00:56:54] Speaker 01: So we would submit respectfully that I'm not sure the exhaustion requirement is quite so strict that a petitioner needs to specifically predict the standard that's going to be applied in order to challenge it as arbitrary and capricious. [00:57:09] Speaker 07: You said there are many, many ways to define subspecies? [00:57:13] Speaker 01: There are a number of ways to define subspecies in the literature, not all of them based on nonclinical geographic variation. [00:57:24] Speaker 01: Thank you. [00:57:25] Speaker 07: I appreciate it. [00:57:26] Speaker 07: The case is submitted.