is there some value of the family farm that would have to be required for the reasonable restoration before that becomes unreasonable can you provide any guidance from that? >> i don't think it would be a hard and fast rule. if you look at the nature of the land. for example here. with the restoration be within the framework that the land was being used for. if used to raise trees all would be necessary is to thin the trees. >> your right at the point. i read this is not an easy case not the result but the concept. you see the statue -- statutes are filled with rear words like reasonable . right here sissy secretary, a determination by the secretary that such areas are essential. to me that calls up is it

reasonable or isn't it reasonable? it is not reasonable to say that this area is essential if the frogs will die anyway. because there aren't enough trees . okay let's look at the picture on page 57. the picture shows an area which has very few trees. and we also know that this is a logging company and so probably they have lots of trees, they like trees. not forever but they want a lot of trees planted there. and so, what is it in this case, what is it in this case that makes discretion, we are filled with words like discretion with the secretary that makes this in and not outside.

that delegated discretion to the secretary. to determine essentiality. the act that you pointed out . >> it is not the act that i am thinking about. but it gives you a lot of discretion. the chief justices first question, surely he can't require the building of hot air green houses in nome alaska. that goes too far. and i am not asking to define it either. there are lots of places where it is not defined. i am asking you to tell me, what is in this record that suggests that this is within the secretary's discretion and not outside of it. >> first of all you pointed to page 57, the joint appendix which shows the uplands at glen pines. there are pictures in the record

ja17320 in the area that are at issue here. there are trees in the background that don't show a dense canopy. i don't want to say there is not forested land there. but i think one of the ways to look at it is, with the modifications be compatible with the existing use of the land? if you're operating a tree operation, cutting down and thinning trees as part of what you do. and it is not as if this would have to be done overnight. >> the problem with that is once you have the. you would need probably federal permits to do things like volume companies typically do. if you're asking for a federal permit, the whole point is you have to go through a fairly elaborate process. you might not get it at the end

. or you won't have to go through the elaborate process and you will probably get one if it wasn't designated . >> as far as logging is concerned, the ongoing logging operations have not required any federal permit. it is only if the land owner wanted to transform the land and use it for development. >> which is exactly what they want to do, right? >> if that is true, then a 404 permit would be required if they are going to fill wetlands or fill the ponds. but if development happens without the need for a federal permit. section 7 does not impose any limitation at all. it is only if there is federal involvement. but here we are talking about the basic qualification of the land to be said designated in the first place. >> in your brief you give meaning to habitat, which frankly is very different than.

pages 27 to 28 you argue habitat could include some areas where a species does not live and cannot ever live. even with restoration. that is very different than what you started your argument with today. it is very different than what you have done with the santa anna. for example . if we disagree with you, where does that leave you in this case? >> if you disagree about the santa anna. >> we are not looking at that. let us assume the dictionary definition of habitat, which is the kind of place that is natural for the life and growth of an animal or a plant. that is very simple. natural place. is this a natural place for this frog to live? and if not,

the difference between you and your colleague, whether some reasonable restoration can be made or not? >> that may in the end be the difference. but i think it is important what you are talking about the definition that you quoted, we quote a number of them on page 33 of our brief. a number of dictionary definitions. it's at the kind of place, the kind of site on which the species could thrive. and here, the kind of site i think is really most commonly understood or defined as the central element. what makes it rare and that is the pond. the kind of place that this frog can live as an ephemeral pond and immediately surrounding uplands. >> but you said they are in the pond for less than a month . >> the frogs are about the

larva and tadpoles remain in the pond for much longer. one of the reasons that this is rendered so rare is that you have to have an ephemeral pond with enough, enough water for long enough., 195 days so that tadpoles can mature and metamorphose. but not water all the time so it has fish that will eat the larva. that's what makes this group of ponds critical . >> you need a place for them to live outside the pond, a question about whether the frogs could live in the area outside, you said yes. although it is far from ideal place. but mr. bishop said no, that frogs could live there. spector's efforts and records

that we could point to that scientists have evaluated the land and found some stumps and there was as was pointed out, there were frogs located on this , up until 1965. even though it was a tree farm, going on. but one of the reason this hasn't been further developed because this really wasn't administrative dispute whether any frog could survive there. that's why it is not findings about that. >> the frogs need ephemeral ponds and there is evidence on the record that there are some stumps. but what about the groundcover and the trees? is there anything on the record that shows that could show that the frogs, there could be a sustaining population of frogs there without changes in the tree cover and therefore changes in the groundcover? >> for long-term sustaining

population there would have to be changes. we acknowledge that, that is what is said here. >> so they couldn't survive where they are now? the test can't be, if you dumped a couple frogs there, and then you came back two weeks later or a month later, would any of the frog still be alive? that can't be the test, right? they would have to sustain themselves? >> they might live for several generations but i don't know . i don't think that is a central point here . i think the fact that frogs would -- were identified there up until 1965 and there are stump holes and basics to be a a sustained area is important. because it shows that is capable of. >> if we could go back to justice alito's question. there other things the government is capable of doing

to conserve these frogs. so what is consistent with mr. bishop's view of the statute? what could the government do if the government is unable to do the could effectively preserve these frogs? >> it does have the authority there is a grant program of grants to states. the grants to the state would have to come become involved. private conservation groups. the federal government could purchase the land. for example if the land owner was willing to sell it. so far there isn't any indication they would be. very rarely exercises the power of eminent domain. they would have the power to do so. but none of that, none of that undercuts the need, statutory

obligation to critical habitat . >> this statue presumes the designation of critical habitat is often, almost always going to be on private land, isn't that correct? >> not almost always. >> it is often going to be on private land? >> it often will be on private land but it is also on public land. it is important that the court understand the limitations the petitioner would take place as the designation of habitat would apply to the governments own landon terms of limiting the confirmation process of someone what they permit on federal land . >> can't you do what you want to federal land? >> yes, to an extent but section 7 is a framework to bring an official wildlife service and its expertise . >> so the only benefit to the federal government is that the fish and wildlife service will sit down with the other

government agencies . >> there is benefit to the public and having section seven scrutiny and consultation go on before an action agency . >> at some point someone in the federal government can say with the fish and wildlife service i want you to sit down with the army of corps of engineers, right? but you don't need a statute to bring that about? >> that's true. but section 7 organizes that by setting up a consultation process so that the action agency can't go forward in an area that might harm the species or its habitat without consulting with the agency. >> i guess what i was suggesting, congress could have passed a statute which is that every time there is a problem of this kind, the federal government has to purchase the land that will support endangered species it didn't pass that statue. it passed a statute that said the secretary could designate critical habitats regardless of

whether that was on private or public land . and then the question is where is this requirement of immediacy come from? that mr. bishop wants to impose? >> immediate restoration human? >> it has to be available to support the species exactly now without any further effort . >> it is not in the act at all . and the whole concept of conservation of the long-term prospect not something that has to happen immediately . >> that is so land is around for a long time we hope the frogs will be too. you're looking out into the future . is there anything you want to add in words that i would write if i were writing this opinion that would distinguish the pace the chief justice first brought up that the only way to save these frogs in addition to the pond is to build special hot houses in nome alaska. a decision rescuing -- resting

on that i would strike me -- it was strike me as far-fetched. all you have to do in addition his drain 6 inches of swamp. even if the owner says i will never do it. i would say it was a reasonable decision. okay. that is highly subjective. are there any words that you could use that would distinguish those two? >> the greenhouse example is not restoring habitat. it is very unlikely. but here the restoration efforts are entirely in sync with the use of the land. there are uplands with trees, as i said they could be thinned, it is not as if, not only the conservation does not have to happen immediately but the restoration doesn't have to happen immediately . >> that is your requirement? the restoration has to be entirely and what did you say in sync .

>> i am not saying that is a hard and fast rule i'm trying to say why this one is reasonable. >> my question, the reason for the hypothetical it seems to me if you permit the designation or something as critical habitat that cannot be occupied by the animal because you think they can do something down the road that would cure the problem, whether it is cut the trees or something else. you should be able to articulate what the limit is on what you require down the road. >> i think whether it is a further modification of the habitat in its existing state and at least where the habitat is being used in a way that is similar to what would be necessary for its restoration. or with the restoration undermine the fundamental nature of it. >> so if you get to the asphalt thing, what you have to do is

just dig up the asphalt. the use of the area for a parking lot is not in tune with his normal whatever . so you couldn't do that under this? >> i think there may be several factors, the effort involved. if it is one road that may not be a obstacle. if i could just point out there is a statutory place to look for the distinction that i am drawing among others, 1533a1a directs the secretary to determine whether a species may be endangered because of a number of factors. the first one is, quote the present or threatened destruction, modification or curtailment of its habitat range. the reference to the modification of habitat suggests that even with modification it is still habitat even though it has been modified. one of the reasons that land is

unoccupied by a species is often precisely because of what has happened, people using the land or transforming the land. but this passage contrasts destruction of the habitat which would be the case if there was a parking lot or building or something to transform it, modification of the habitat which suggests it retains its essential nature. and here, unit one retains its essential nature which is a very rare pond. not only that a collection of five ponds which enables the development of a meta- population. >> could we talk about, i see your point with talking of a kind of place . it does seem logical that the frogs were there and they were there for a very long time. they were there during the timber cutting. but they left. they left her they were destroyed.

what is it about the native environment that still exists there? and what is it that you think, with very little reasonable effort, that you could change to make it sustaining for a long period of time? >> what the frog needs. >> the i know. >> it would not mean clearcutting the pines and planting longleaf pines. >> that is my point. >> there is an example in the recovery plan that is on the record when it is describing what has happened that clint -- glenn pond. which is the place in

mississippi where there is is the only place of a stable population at all. it describes there has been some habitat management which has included fitting trees and planting longleaf pines. which suggests this could be a gradual process as the longleaf pines mature. they could be cut, some could be cut now to create some open space. you could cut some trees and leave stumps there for the frog it could be a gradual process. it doesn't require that it be instantly made available. >> it is still the case that would require consent of the owners. they say they're not going to do it. we can't require them to do it, right? >> but again what constitutes habitat looks at the nature of the land and whether something is essential. you can't require them to do it. but the service looks at it and says this specie is going to be conserved and in fact if this species is going to survive at all and not be extinct it is essential to use these ponds. it may be that if the land

owner can ignore that. but it does serve to identify, for the land owner and for others that this is critical habitat to the survival of the species. >> can you explain, suppose regulation is in effect? what would fish and wildlife service have to do different if the regulation were in effect? >> if the proposed regulation were in effect? >> yes . >> i think this would qualify under the proposed regulation. while the land owner intentions can be figured out it is more in a sliding scale. the more critical the particular area is for the species, the less likely the intentions of the land owner would be taken into account. i think this exactly describes this case. this is a rare case because of the rare nature of these ponds.

it is critical to preserve these ponds and they can be used for the habitat of the species. it is the kind of place, because of the pond where the species can thrive. >> let's assume for the moment that this isn't habitat. and therefore couldn't be designated as critical habitat. could the secretary take other actions to identify this land as critical to the survival of the species even if it isn't currently habitat? is there anything in section 7 or elsewhere in the statute to prohibit that? >> the way i read it, secretary has to take action to avoid jeopardizing of the continued existence of endangered species or in the destruction of critical habitat. there isn't or there. -- there is an order there. this is a critical habitat, to identify this land as important

to the survival of the species. >> section 7a2 talks about what the agency can do for critical habitat. but that is the operative action part of the statute. but the concept of habitat has never been a technical term for technical feature. >> if you could just answer my question? >> maybe on an ad hoc basis but it is not under the statute . >> mike question is why isn't it under the statute given that language? the agency can take cognitives of, endangered species quite apart from preserving its habitat it seems to me there are two duties the secretary has there. this would fit neatly under at least one of them is not the second. >> the secretary could but the

designation of critical habitat as i said, it is mandatory under the act, it has important function including identifying the area where action should be taken because of the likelihood here that the frog will need that space to survive. again i suppose the secretary could do something on an ad hoc basis but that is not the framework that the statute set up . it set up with rulemaking went public transparency to be based on science with public input and identification of costs and weighing of costs. this is an elaborate process and what the secretary should do to protect the land and whatever agency should do to protect the land . >> agency does lots of things to protect endangered species beyond protecting their habitat, doesn't it? >> yes, if there is federal land involved other federal agencies could do a . but the secretary could not have any

independent authority with two private land except for designated private habitat. >> opponent -- imposes obligation on all other federal agencies should in consultation utilize authorities in furtherance of this chapter. critical habitat is just one part . >> at that is only if it is designated critical? >> know that is a general obligation . whenever you go for a clean water act permit. no critical habitat need be involved. wildlife agencies immediately gets involved in has to sign off on those . critical habitat does not have to be involved. there is a perfect example in this case. if you read the final designation here . the properties in mississippi were restored before there was any critical habitat designation. and the brief says that in doing so, the frog survived in mississippi through quote intense human effort and

extensive habitat restoration. that was all done before the critical habitat designation in this case. and just to understand here. and to respond to these changes in sync argument that they made. there is nothing in sync about creating an open savanna on our property. this is an intensive 1500 acre tree farm. the trees are planted 10 to 12 feet apart. there is no groundcover because the sunlight does not reach the fourth floor. we don't want to to . because it interferes with attending to the trees and it interferes with harvesting them. this is not a property in which there would be any groundcover to supply moisture or food or cover for these frogs. you would have to totally change the way that this land operates in order to accommodate the frog. and the idea that the frog scientists agree with the government is simply wrong.

i would urge the court to read who say for example, the plan commercial plant plantations could be restored to suitable upland habitat. says that aggressive and proactive management to the uplands would be critical to the survival of the frog. the most important a management tool being fire to prevent this from being unsuitable habitat. the scientists all have the same point of view. this land could be restored for extensive effort to upland frog habitat. not one of them said that this is currently habitat on what this frog can survive. the immediacy here comes from the statutory language. it comes from the word habitat in section 4, comes from the limitation in 35c it comes from

a 33list in where you can certainly anticipate were congress had to have the land restored or totally remade in order to be habitat for the frog. it would have said that instead of using the word maintenance . maintenance of the word that naturally refers to maintaining what you already have there and improving it. not to completely change in. in addition, in addition to the powers i we talked about a federal agency having to protect these creatures, quite apart from critical habitat designation. there are also powers operated through the states and purchase power in section 5 . that allow protection. this is not a choice between frog striving and not surviving if it doesn't have this critical habitat. there are plenty of ways for the government to ensure as it should, that the frog survives. >> i am sorry, i think i read

that if these ponds are not designated that there are no other ponds in the united states . so to the extent that these ponds are not designated critical habitat and don't survive, this frog won't if there is a drought or other conditions in mississippi. >> first of all there are other ways to acquire these ponds. not one person from the government or for any of the nature conservancy or other groups that my easement of property have talked to any of the owners here. but the second thing is . >> but they don't have to. they can designated and then in the -- and then the process goes on and they talk to the owners and you come to an accommodation. that is what generally happens . >> the government has made it absolutely clear what it thinks that means.

the most likely outcome here if we need to apply for permits is that we get to use 40% of the land for development and we have to turn 60% of it over for frog habitat. we don't think that that is an appropriate use of our land given that this is not habitat to begin with. thank you . >> thank you counsel, the case is submitted. coming up tonight, american history tv is in prime time with more programs on the american west . including a panel discussion on rapid settlement of the westin history of wildlife conservation including the creation of yosemite national park . american history tv and prime time starts at 8 pm eastern tonight. campaign 2018 coverage continues with several debates, massachusetts democratic senator elizabeth warren debates her republican challenger on c-span.

on c-span two starting with 9 pm scott walker will debate his democratic rival tony ebert in madison. at nine on c-span nevada republican senator debates his challenger congressman jackie rosen in las vegas. for 18 days with election day c- span is your primary source for campaign 2018. sunday on c-span q&a. joel richard paul professor university california hastings law school in san francisco talks about biography of justice john marshall. >> john marshall's legacy was really obscured by a single opinion, his decision to mom marbury versus madison that established principle of judicial review. that is what he is known for . but the fact is john marshall was a soldier in the revolutionary army, he was very important he was a judge

advocate general. he served at valley forge. he was a leading figure in the virginia house of delegates and probably the indispensable man in ratification debates because he was the guy that really persuaded the majority of virginian delegates to go along with ratifying the constitution without virginia there wouldn't have been a constitution . he was an important diplomat with negotiations of france. and he was secretary of state. all of those contributions he made at the founding father kind of get forgotten because of the significance of his one decision, marbury versus madison. sunday nine at eight -- eight eastern on c-span's q and a. next we will hear from the director of defense intelligence agency. he spoke at the center for strategic and international studies last month.