[00:00:00] Speaker 01:
This is case, it's Alliance for the Wild Rockies versus Higgins, case number 24-1500.

[00:00:06] Speaker 01:
And we'll hear first from Ms.

[00:00:10] Speaker 01:
Smith.

[00:00:20] Speaker 03:
Good morning, Your Honors.

[00:00:22] Speaker 03:
May it please the court, my name is Rebecca Smith and I represent the Appellant Alliance for the Wild Rockies.

[00:00:28] Speaker 03:
I would like to reserve five minutes for rebuttal.

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

[00:00:32] Speaker 03:
Because the panel is already familiar with this case, I'm going to dispense with sort of the normal procedural background and general factual background and just move right into what is the key issue here before the court.

[00:00:44] Speaker 03:
Before I dive into that, there's just two sort of key facts from the statutes here that I want to touch base on.

[00:00:52] Speaker 03:
First is that under section 6591 be of the healthy forest restoration act the Hannah flats project was exempted from the administrative review process as a categorical exclusion and then the second part of the relevant statutes is that under section 6515 of the healthy forest restoration act that that provision is the administrative review provision and that provision is the only

[00:01:20] Speaker 03:
Administrative review it's the sole administrative review provision and it's the only place in the statute that has any kind of scoping comment requirement administrative exhaustion requirement or Issue exhaustion requirement and so the question presented really to the court today sort of boils down to whether the court should

[00:01:43] Speaker 03:
impose a judicially created issue exhaustion requirement here.

[00:01:47] Speaker 01:
Hold on.

[00:01:47] Speaker 01:
You keep calling it judicial exhaustion.

[00:01:50] Speaker 01:
Aren't we running into the same problem we had before?

[00:01:53] Speaker 01:
I mean, I thought that's what we said before was this isn't an exhaustion issue.

[00:01:59] Speaker 01:
This is a question of whether you waived it by not raising it.

[00:02:05] Speaker 03:
And thank you, your honor, for that.

[00:02:07] Speaker 03:
There is a doctrine of exhaustion of administrative remedies, and then there's a separate doctrine of issue exhaustion, which in the Petrick opinion, this court referred to as administrative waiver.

[00:02:20] Speaker 03:
And so my reference to 6515 is that we have both of those doctrines, both administrative waiver, also known as issue exhaustion,

[00:02:28] Speaker 03:
and exhaustion of administrative remedies are both addressed in 6515 and only applied there to EAs and EISs.

[00:02:37] Speaker 04:
Right, but I think

[00:02:39] Speaker 04:
the Supreme Court at least seems to have indicated that with respect to exhaustion of administrative remedies, we really look to the statutes, but with respect to waiver slash issue exhaustion, that when the statute and regulation does not require it, it is actually still something that courts may and have routinely imposed.

[00:03:05] Speaker 04:
And so then I tend to agree with you.

[00:03:07] Speaker 04:
The question is whether

[00:03:09] Speaker 04:
We should in this instance.

[00:03:11] Speaker 03:
Yes, your honor and then that goes to the case that the court requested that we discuss today carves all from the Supreme Court That was the precise issue in carves all the issue There was that the Social Security regulations did not require issue exhaustion and so the Supreme Court Addressed the issue of whether it should nonetheless impose a judicially created

[00:03:34] Speaker 03:
issue exhaustion and what the court did in cars similar to what it did in sims was it said there is a test for that and the test is how similar to normal adversarial litigation was the administrative proceeding that was offered in this case before we get there I want to be clear do you think that the statute addresses issue exhaustion in this case

[00:04:01] Speaker 03:
Yes, Your Honor, and I'll show you why.

[00:04:03] Speaker 03:
Well, let me give a more nuanced answer there.

[00:04:07] Speaker 03:
The statute does address issue exhaustion, but it only applies it to projects that are analyzed in an EA or EIS.

[00:04:16] Speaker 02:
So this wasn't because the Forest Service took the position that the exclusion applied.

[00:04:21] Speaker 03:
Correct.

[00:04:21] Speaker 02:
And so you agree that in that context, the administrative exhaustion scheme doesn't apply and therefore also issue exhaustion.

[00:04:30] Speaker 02:
If the statute addresses it doesn't apply correct that is our statutory interpretation argument you're okay And so then if that's the case then you would agree if if car applies then we would be at step two Because there's no statute that governs the issue and we would be assessing whether this proceeding looks adversarial or not correct your honor and I I think there are basically five different factors you can sort of pull out of the car case when they're analyzing

[00:04:59] Speaker 03:
whether a proceeding was sufficiently adversarial.

[00:05:03] Speaker 03:
And those factors were things like, were lawyers required in the administrative proceeding?

[00:05:08] Speaker 03:
Were briefs required to be filed in the administrative proceeding?

[00:05:13] Speaker 03:
Were participants notified that a failure to raise issues would result in a forfeiture of those claims during any subsequent litigation?

[00:05:20] Speaker 03:
Another factor they looked at is the participant, in that case the claimant,

[00:05:25] Speaker 03:
solely responsible for investigating the facts and developing issues and then a fifth factor they looked at was is the proceeding characterized by the agency itself as adversary and these factors can be found at pages 90 to 96 of that opinion and in every one of those questions the answer in Carr was no and in every one of those for every one of those questions here the answer is also no.

[00:05:51] Speaker 02:
We don't have any briefing from the parties on Carr which is why

[00:05:54] Speaker 02:
The court asked the parties to be prepared to address that today.

[00:05:57] Speaker 02:
You know, Carr obviously was in a different context, right?

[00:06:02] Speaker 02:
Social Security, ALJ proceedings, sort of quasi-adjudicative proceeding.

[00:06:07] Speaker 02:
And also the decision on Carr talked a lot about futility and sort of some unique things going on in that case.

[00:06:13] Speaker 02:
Why does Carr apply here?

[00:06:16] Speaker 03:
Well, Your Honor, first, Carr applies because of those five key factors that I just addressed.

[00:06:21] Speaker 03:
In Carr, the answer to everyone was no here as well.

[00:06:25] Speaker 02:
But even before we get there, couldn't we say, well, Carr seems to apply to a particular context?

[00:06:31] Speaker 02:
Maybe not just Social Security, but maybe sort of quasi-adjudicative ALJ kind of proceedings, and that's not what this is, so it wouldn't apply here.

[00:06:38] Speaker 02:
Why shouldn't we say that?

[00:06:40] Speaker 03:
Because, Your Honor, what Carr addressed was a spectrum, and what Carr said was the more likely your administrative proceeding is like adversarial litigation, the more likely we would impose issue exhaustion.

[00:06:52] Speaker 01:
When you have something like this case... Well, yeah, but doesn't that sort of answer the question?

[00:06:58] Speaker 01:
This isn't an adversarial proceeding.

[00:07:00] Speaker 03:
And that is precisely why under the Supreme Court's decision in Carr, no issue exhaustion requirement can be created and imposed by the court in this case.

[00:07:10] Speaker 01:
No, I don't read Carr to say that.

[00:07:11] Speaker 01:
I mean, I've always understood notice and comment.

[00:07:17] Speaker 01:
It doesn't make any sense to have a notice and comment requirement and then allow parties not to make a comment and then say that's okay, you still have to address it.

[00:07:26] Speaker 03:
And here as in car there is no comment requirement just in the regulations and the statute just as there was not in car There is no requirement once they go out for notice and comment.

[00:07:39] Speaker 01:
That's why you go out for notice and comment Your honor is to get comment.

[00:07:43] Speaker 01:
What's the purpose of notice and comment?

[00:07:45] Speaker 03:
So you're saying they didn't even need to do notice and comment here No, your honor notice and comment are two separate things and that's important not to conflate

[00:07:53] Speaker 03:
Scoping notice is absolutely the obligation of the agency under this statute the agency Absolutely has to give notice to the public of these activities happening on public land there is no

[00:08:06] Speaker 01:
Reciprocal requirement that the public respond with mandatory comments, and that's why we're in car There's never a requirement that I mean there's a requirement that you go out for notice and comment You're saying scoping is different than notice and comment

[00:08:24] Speaker 03:
Your honor this is why it's important that we have to look at the exact statute at issue here there Absolutely is a comment requirement under the healthy forest restoration act section 6515 administrative review process This is at 6515.

[00:08:42] Speaker 01:
I just want to back up because your argument seems to be that

[00:08:47] Speaker 01:
That unless the statute requires a party to file a comment, that there can never be an issue, there can never be administrative waiver.

[00:08:59] Speaker 01:
I've never understood administrative law to be that.

[00:09:04] Speaker 01:
I mean, that's not what the district court said.

[00:09:06] Speaker 01:
And I thought the district court cited some pretty compelling cases for this.

[00:09:10] Speaker 03:
That is not our argument, Your Honor.

[00:09:11] Speaker 01:
OK.

[00:09:12] Speaker 03:
The argument is, when there is no statutory or regulatory requirement,

[00:09:17] Speaker 03:
The court analyzes the CAR factors to determine whether the administrative proceeding was so like an adversarial litigation proceeding that it's appropriate to create a judicially imposed issue exhaustion requirement.

[00:09:30] Speaker 03:
This is the CAR issue.

[00:09:32] Speaker 03:
If it's not required by statute or regulation, here is the test.

[00:09:37] Speaker 03:
Is it like an adversarial litigation proceeding?

[00:09:39] Speaker 03:
Here it was not.

[00:09:40] Speaker 03:
No lawyers, no briefs, no notice to the parties of forfeiture.

[00:09:45] Speaker 03:
All those five factors met in car are met here, but I do want to go back to judge force I did hear your question about there being other considerations in car for example They talked about the fact that it was a constitutional claim and then they also talked about the issue of futility and so those two additional considerations are not present in this case, but there are

[00:10:08] Speaker 03:
to different additional considerations in this case, and that is that we have a statute, and we're talking about statutory interpretation.

[00:10:18] Speaker 03:
And in the Loper-Bright decision by the Supreme Court, the Supreme Court said, if your statute is ambiguous, you can no longer just defer to the agency.

[00:10:27] Speaker 03:
The court has to apply tools of statutory construction.

[00:10:30] Speaker 03:
So we have that Loper-Bright directive, and then we do have a statute here.

[00:10:35] Speaker 03:
And that statute does require comments, but only for EAs and EISs.

[00:10:41] Speaker 03:
And there is a very common tool of statutory construction that says when you have a list of things and some things were excluded, you must interpret those exclusions as omissions.

[00:10:52] Speaker 01:
So your position is anytime there's a scoping

[00:10:57] Speaker 01:
process under the healthy forest restoration act You can just sit on the sidelines not file a comment not say anything and then challenge whatever the Forest Service does No, your honor that is not our position because What you're saying there's no there's no there's no administrative waiver

[00:11:19] Speaker 03:
know your honor what we're saying is that section six five one five eight three it states to be eligible to participate in the administrative review process a person shall submit to the secretary during scoping or the public comment period specific written comments

[00:11:36] Speaker 03:
There what we're saying is there is actually an express requirement for comments under the healthy forest restoration act But it only applies to ea's and eis I know that's why I said my question was for scoping when they do scoping You don't have to comment on it for ea or eis you do yes your honor are is your question space So I think we're getting lost here so if if we had a situation where the exemption that the Forest Service claims applies

[00:12:03] Speaker 02:
And so all they're going to do in terms of public interaction is scoping not notice and comment if somebody was aware that that was going on the scoping process But said nothing and later tried to sue to say that the Forest Service had you know?

[00:12:20] Speaker 02:
Acted outside the scope of its authority Could they do that?

[00:12:25] Speaker 02:
even though they said nothing during scoping.

[00:12:27] Speaker 04:
Under the test in CAR, yes, Your Honor, and I'd like to just... Well, you've acknowledged that CAR didn't rely solely on the nature of the proceedings, right?

[00:12:39] Speaker 04:
The adversarial, or lack thereof, nature of the proceedings was a series of considerations, but the way I read CAR saying, and then on top of that, there are two other considerations that tip the scales in favor of

[00:12:54] Speaker 04:
not requiring issue exhaustion and in their footnote they say if this had been a routine social security matter the balance may have come out differently so I think they the way I read cars that it actually depends on the nature

[00:13:11] Speaker 04:
of the issue and they had both constitutional issue that was not within the regular scope of the agency's expertise as well as a futility problem because the agency itself was telling ALJs not to address this particular type of objection.

[00:13:31] Speaker 04:
And you've now acknowledged those two factors would not tip essentially the balance in favor of not applying

[00:13:41] Speaker 04:
issue exhaustion in this particular case.

[00:13:44] Speaker 04:
So I don't think, I mean the way I read CAR, I don't think we can actually make a categorical decision either there is issue exhaustion or is not, but it seems to me that we have to have some kind of case specific, issue specific consideration here.

[00:14:03] Speaker 04:
So I think

[00:14:04] Speaker 04:
There then you're I think you're arguing that there is a case specific consideration here because of this statutory interpretation nature of the objection that you're raising.

[00:14:17] Speaker 04:
That's correct your honor.

[00:14:18] Speaker 04:
Okay.

[00:14:18] Speaker 04:
Do you have any authority that would suggest that that is the type of issue should

[00:14:24] Speaker 04:
tip the scales in your favor here.

[00:14:26] Speaker 03:
Loper-Bright, Your Honor, would be the case, because it says the courts must apply tools of statutory construction to an ambiguous statute.

[00:14:35] Speaker 03:
And the government's argument here is essentially that it's ambiguous whether categorical exclusions are excluded.

[00:14:42] Speaker 04:
Was there an exhaustion issue in that case, though?

[00:14:45] Speaker 04:
No, Your Honor, I'm just talking... You're just saying because of the nature of the statutory interpretation question.

[00:14:51] Speaker 01:
The problem is, I mean, you seem to be diverting away from what the district court relied on and what I understand the rule to be.

[00:15:01] Speaker 01:
At least how I've understood administrative law.

[00:15:03] Speaker 01:
So, I mean, I got to dig into this more, but there's a general requirement that you have to present your comment to the agency first.

[00:15:13] Speaker 01:
or you don't get to challenge it.

[00:15:15] Speaker 01:
And you seem to be saying, no, but the statute, that's where your Lope or Bright comes in, is the statute has exempted that general background.

[00:15:26] Speaker 01:
But I mean, I guess that's the whole question, is does the statute actually do that?

[00:15:30] Speaker 03:
Yes, your honor, and I want to make two points on that, and then I'd like to reserve my remaining time for a bundle.

[00:15:36] Speaker 03:
The first point is that all of the cases cited by the district court were under a different statute.

[00:15:42] Speaker 03:
None were under the Healthy Forest Restoration Act.

[00:15:45] Speaker 03:
And the second point there is that every single one of them had an administrative review process.

[00:15:50] Speaker 03:
And what the Supreme Court said in Carr is, we're looking at that, we're seeing that it's adversarial, and that's how we decide if we impose issue exhaustion.

[00:15:59] Speaker 03:
how adversarial was the administrative review process.

[00:16:02] Speaker 03:
Every case cited by the district court had an administrative process.

[00:16:07] Speaker 03:
We were specifically exempt from any administrative review process here.

[00:16:12] Speaker 03:
So we're on this far end of the spectrum where there was no adversarial nature at all.

[00:16:18] Speaker 03:
In fact, you know, just as in the Social Security regulations where they say it's non-adversary, here in the statute they're calling it collaborative.

[00:16:26] Speaker 03:
It's the exact opposite of an adversarial proceeding.

[00:16:29] Speaker 03:
And there is no case law when there is no administrative review process provided, when it's a completely non-adversarial proceeding that a court would then impose a judicially created issue exhaustion requirement, when you also have a statute that seems to be excluding these categorical exclusions from such a requirement.

[00:16:51] Speaker 03:
And I'd like to reserve my remaining time.

[00:16:52] Speaker 03:
Thank you.

[00:17:02] Speaker 00:
May it please the court, my name is Joan Pepin on behalf of the Forest Service.

[00:17:06] Speaker 00:
I'd like to go straight to the issue of Carr versus Saul and whether it applies here.

[00:17:10] Speaker 00:
This case is governed by public citizen, not Carr versus Saul.

[00:17:14] Speaker 00:
Those two Supreme Court decisions represent two distinct lines of cases in which the Supreme Court has looked at a very similar issue in two very dissimilar contexts.

[00:17:25] Speaker 00:
In both sets of cases, the court recognized the basic rule as this court did in Patrick

[00:17:31] Speaker 00:
that unless there's some exception, a failure to raise your argument before the agency, such as in comments in a public comment process, usually waives a litigant's right to make that same argument in court.

[00:17:44] Speaker 00:
In SIMS versus APFL, I'm sorry, in CAR, in CAR, the court looked at that in the context of social security disability proceedings, a quasi-judicial individualized adjudication.

[00:17:59] Speaker 00:
And in public citizen,

[00:18:01] Speaker 00:
and in Vermont Yankee, the Supreme Court looked at that in the context of public environmental review processes.

[00:18:07] Speaker 00:
And they came to very different results in those two cases.

[00:18:09] Speaker 02:
So I have a question about that.

[00:18:12] Speaker 02:
Yes.

[00:18:12] Speaker 02:
It seems to me that NCAR, when they're setting up this rule about when the statute is silent, then we go to this analogy about how adversarial the proceeding is, they're not just citing quasi-adjudicative authority.

[00:18:25] Speaker 02:
They're citing cases that go broader than that.

[00:18:28] Speaker 02:
So it suggests that they're setting up a general principle of administrative law.

[00:18:32] Speaker 00:
Yeah, if we didn't have two other cases,

[00:18:36] Speaker 00:
Let me give a little more background.

[00:18:38] Speaker 00:
Everything that Carr versus Saul says about how adversarial this is and how much it looks like an American judicial proceeding rather than a European or Latin American judicial proceeding, inquisitorial style, all of that comes from the Supreme Court's earlier case in Sims versus Apfel, which Carr cites on every point on that.

[00:18:59] Speaker 00:
And that case was decided in 2000.

[00:19:01] Speaker 00:
And then four years later, the unanimous Supreme Court

[00:19:06] Speaker 00:
held in public citizen that waiver applied in the NEPA context to, it held that because the plaintiffs in that case had not raised certain objections to the EA in that case, that those were not before it.

[00:19:21] Speaker 02:
So, but public citizen is the NEPA context as you just said and in public citizen was there a statute that

[00:19:28] Speaker 00:
Required exhaustion no NEPA doesn't require Terminology none of them require.

[00:19:36] Speaker 00:
I don't know about exhaustion as far as waiver the NEPA does not require it and the regs at that time did not require it and the regs at the time of this decision did not require it so it was a judicially imposed requirement in public citizen and in Vermont Yankee and and yet the Supreme Court and

[00:19:56] Speaker 00:
uh... here's what's really interesting.

[00:19:58] Speaker 01:
And Vermont Yankee wasn't a NEPA case, was it?

[00:20:02] Speaker 00:
Yes, it was.

[00:20:02] Speaker 01:
Oh, it was.

[00:20:02] Speaker 01:
They were both NEPA.

[00:20:04] Speaker 01:
So do we have cases outside of the NEPA context that also apply administrative waiver?

[00:20:09] Speaker 00:
Um, the other big context where this comes up is notice and comment rulemakings, where it's also judicially imposed.

[00:20:15] Speaker 01:
So, can we analogize those or not?

[00:20:18] Speaker 01:
Are you, I mean, would you say that the, because that's how, I guess that's my problem with this is I

[00:20:24] Speaker 01:
Kind of come at this from a notice and comment.

[00:20:26] Speaker 01:
I mean, I view this as similar to a notice and comment, and I've always understood notice and comment to require to impose administrative waiver.

[00:20:35] Speaker 00:
Right.

[00:20:35] Speaker 00:
So often when we say notice and comment, we think of formal rulemaking under the APA.

[00:20:40] Speaker 00:
But notice and comment applies to many things, including this categorical exclusion.

[00:20:44] Speaker 00:
The statute required the Forest Service to hold a collaborative process at the end of which they would produce a scoping notice, which went out for notice and comment.

[00:20:53] Speaker 00:
and so the plaintiffs as a district court held had the opportunity to provide these comments they had they had notice of all the issues and they provided many comments but not this one and that is the classic under public citizen in vermont yankee is the classic to me sorry to interrupt there's limited time so i think

[00:21:13] Speaker 04:
There's a way to reconcile CAR with public citizen in Vermont Yankee, which is essentially to still we have to consider whether we should actually judicially impose an issue exhaustion requirement considering the factors.

[00:21:29] Speaker 04:
And that I think it's certainly under Vermont Yankee and public citizen certainly compelling argument that generally we should, but then that still

[00:21:40] Speaker 04:
I think we still have to engage in the car analysis of whether we should, in this case, considering the nature of the process as well as the nature of the issues raised.

[00:21:50] Speaker 04:
Now, counsel on the other side has conceded that the exact same considerations of a constitutional issue and futility are not present here.

[00:22:00] Speaker 04:
But they're arguing because this is essentially a pure

[00:22:06] Speaker 04:
question of statutory interpretation that's a similar consideration is what I take to be their argument can you respond to that.

[00:22:16] Speaker 00:
Sure.

[00:22:18] Speaker 00:
I think CAR and its factors do not apply here, and here's how we can tell.

[00:22:22] Speaker 04:
You think CAR just has absolutely no application here?

[00:22:25] Speaker 00:
I really do.

[00:22:26] Speaker 04:
Okay, can you assume for this one?

[00:22:27] Speaker 04:
All right, you can address that argument.

[00:22:28] Speaker 00:
Well, can I just say why?

[00:22:29] Speaker 00:
Sure.

[00:22:29] Speaker 00:
The Supreme Court decided in Vermont Yankee that the waiver rule applies to NEPA proceedings.

[00:22:34] Speaker 00:
When they decided SIMS versus APFL, which was also Social Security Disability Hearings, in 2000, they didn't even cite Vermont Yankee.

[00:22:42] Speaker 00:
They held exactly the same thing they held in CAR.

[00:22:46] Speaker 00:
And then in four years later, unanimously, the Supreme Court didn't even cite Sims versus Apfel when they applied the waiver rule in the NEPA context to an EA.

[00:22:56] Speaker 00:
And then in Carr versus Apfel, they didn't cite Public Citizen or Vermont Yankee.

[00:23:01] Speaker 00:
It seems like the Supreme Court doesn't think these two lines of cases are really very related to each other.

[00:23:07] Speaker 00:
One is very limited.

[00:23:08] Speaker 00:
And this court actually has a precedent, Universal Health Services, which you've also cited in Patrick.

[00:23:14] Speaker 00:
that talked about Sims in that context.

[00:23:17] Speaker 00:
That was a notice-and-comment rulemaking case, and the plaintiff in that case said, Sims, we should look at how adversarial it is and, you know, the waiver doesn't apply anymore.

[00:23:27] Speaker 00:
And this court held that Sims, quote, turned on the unique nature of Social Security benefit proceedings and offers no guidance relevant to rulemaking.

[00:23:36] Speaker 00:
I think it also offers no guidance relevant to the kind of public environmental procedures involving

[00:23:44] Speaker 00:
This case involved two years of public process of site visits and meetings and a 44-page scoping notice with environmental analysis that was sent out for public comment, receiving that comment, changing the decision.

[00:23:58] Speaker 00:
And, you know, I think the Supreme Court took these factors into consideration, the nature of the proceeding.

[00:24:05] Speaker 00:
The Social Security benefits at issue, those hearings were very short.

[00:24:11] Speaker 00:
In Sims versus Apple, the one in 2000,

[00:24:14] Speaker 00:
The sources cited by the Supreme Court said that the types of hearings that were at issue, the judges had 500 a month to decide, spent an average of 15 minutes on each case.

[00:24:31] Speaker 00:
Compare that to the two year for a categorical exclusion process in this case.

[00:24:36] Speaker 00:
So when you're saying the agency has to do it over even though the issue wasn't raised before them, the adverse consequences to the agency

[00:24:43] Speaker 00:
compared to the rights of a disability complaint, we're in a very different balance than they are here.

[00:24:49] Speaker 02:
I mean, I understand that argument, and we're at a disadvantage here because we don't have any briefing on CAR, and we're raising that for the first time in argument, and perhaps we need supplemental briefing.

[00:24:59] Speaker 02:
But there are other circuits, including notably the DC circuit, which is applying CAR more broadly than you're suggesting, including in an FDA drug approval context, and saying,

[00:25:10] Speaker 02:
In this context, there is no statute that requires this issue exhaustion.

[00:25:16] Speaker 02:
Therefore, we're going to look to the judicial, you know, whether we should exercise our discretion, our prudential right to impose a judicial requirement and looks exactly at a CAR to answer that question.

[00:25:27] Speaker 00:
Well, I'm certainly not saying that CAR has to be narrowly confined to only social security disability proceedings.

[00:25:33] Speaker 00:
But I think it is, I think you can certainly infer from the Supreme Court's concerns and the reasons they talked about how this was a,

[00:25:40] Speaker 00:
a single page form with three lines to write your issues and that it was expected to take ten minutes.

[00:25:49] Speaker 00:
That they were talking about, they had a lot of concern about the fact that these litigants are usually unrepresented and that this is supposed to be a simple user-friendly process.

[00:26:01] Speaker 00:
Now that's saying NEPA isn't, but those factors were very important in

[00:26:10] Speaker 00:
in the social security cases and that context is these individualized adjudications, quasi-judicial actions.

[00:26:20] Speaker 00:
And the appropriate precedent for large public processes is Vermont Yankee and public citizen.

[00:26:31] Speaker 00:
And I've talked a little bit about the consequences to the agency.

[00:26:34] Speaker 00:
I'd also like to talk a little about the incentives.

[00:26:37] Speaker 00:
And I think the Supreme Court recognized this one in Vermont Yankee.

[00:26:40] Speaker 00:
A social security disability claimant has no incentive to withhold any issues and wait for litigation.

[00:26:47] Speaker 00:
Delay hurts them, right?

[00:26:49] Speaker 00:
So they have no incentive to do that.

[00:26:51] Speaker 00:
Whereas, if you were not to have the waiver rule in these big environmental public processes, I would think a litigant's incentive would be to hold their peace, wait for court,

[00:27:04] Speaker 00:
and then they can raise the issues, and when the agency tries to defend itself, say, well, you can only defend the agency decision on the reasons given by the agency, and the agency didn't address this.

[00:27:13] Speaker 02:
Well, I'm not sure how far that goes, because the context will inform that to some degree, right?

[00:27:16] Speaker 02:
So if you're in a NEPA analysis and your challenge is, you know, there's an alternative that you should have considered in this environmental project, your APA challenge is going to be failure to consider all the relevant

[00:27:29] Speaker 02:
information presented, but you're not going to be able to make that APA challenge unless you have actually presented a new alternative to the agency for it to consider.

[00:27:37] Speaker 02:
So in this context, the argument is different.

[00:27:40] Speaker 02:
The argument is that the government is acting outside of the scope of its statutory authority by applying an exception that hasn't been, that the legal requirements haven't been met to.

[00:27:49] Speaker 02:
So it applies differently in terms of how, because the government always has the requirement to act lawfully, to follow its statutory requirements.

[00:27:59] Speaker 02:
And so the incentives as you're talking about and the sort of the burdens on both sides of the V are different in a context where you're arguing about government power as opposed to I have a new idea I want the government to consider.

[00:28:12] Speaker 00:
I don't really feel like this case is about government power.

[00:28:17] Speaker 00:
This categorical exclusion exists.

[00:28:19] Speaker 00:
The agency made certain findings.

[00:28:22] Speaker 00:
They dispute one of the findings.

[00:28:23] Speaker 00:
The finding was that this is in the wildland urban interface.

[00:28:26] Speaker 00:
and they believe that there is not sufficient evidence in the record to support that finding.

[00:28:30] Speaker 00:
It's not really about the government's power to act.

[00:28:32] Speaker 01:
Well, and indeed, wouldn't we, we could have the same exact context in an EA, if you were doing an EA, you could, I mean, yeah, the government has a duty to comply with the law, but if someone's not pointing out that they're not complying with the law, we would say it's administratively waived in the, in the EA context.

[00:28:51] Speaker 01:
I mean, you could have a question about whether you've considered alternatives and what the definition of

[00:28:56] Speaker 01:
you know, alternatives is, and if they don't raise that argument, they can't come in later and say, oh, well, you didn't comply with the statute.

[00:29:03] Speaker 00:
That's right, and that's exactly what, well, this court has held it so many times, and I would argue that this court is bound by that precedent, including two cases that post-Dade Carr.

[00:29:12] Speaker 00:
One would be your own prior decision in Petrick.

[00:29:15] Speaker 00:
And the other would be Earth Island Institute.

[00:29:19] Speaker 01:
By the way, I wanted to ask about that.

[00:29:21] Speaker 01:
To what degree does, I mean it's interesting because we've sort of gotten diverted from the issue that we actually remanded on.

[00:29:26] Speaker 00:
Yes.

[00:29:27] Speaker 01:
And to what degree does Patrick already answer this question?

[00:29:33] Speaker 00:
Well, you know, the plaintiffs have provided some briefing about law of the case and they cited a case called Leslie's Salt that says the scope of a subsequent appeal is narrowed to the limitations of the remand.

[00:29:45] Speaker 00:
And in this case, the remand was, does the fact that a categorical exclusion was used in this case make this an exception to the waiver rule?

[00:29:53] Speaker 00:
I would say getting into Carr versus Saul, and is this more like a quasi-judicial proceeding, is going far afield from that.

[00:30:00] Speaker 02:
Well, I guess I don't understand that.

[00:30:01] Speaker 02:
In Hannah Flats 1, we remanded to say, district court, you determine whether administrative waiver applies here.

[00:30:08] Speaker 02:
That's the question we're talking about.

[00:30:09] Speaker 02:
How is that outside the scope of the remand?

[00:30:13] Speaker 00:
Well, because the court had already

[00:30:15] Speaker 00:
reaffirmed the basic doctrine of administrative waiver in its opinion.

[00:30:19] Speaker 02:
Well, if we had decided administrative waiver, why would we have remanded for the district court to decide whether the waiver applies?

[00:30:25] Speaker 00:
In the district court, the district court had found that they did raise the issue, right?

[00:30:29] Speaker 00:
And so it didn't confront a secondary argument they had made that said, well, this is different because it's a categorical exclusion, and the waiver rule shouldn't apply to categorical exclusions.

[00:30:40] Speaker 00:
And the district court never reached that argument because it said they did raise it.

[00:30:43] Speaker 00:
This court found that the district court was wrong about that.

[00:30:45] Speaker 00:
They hadn't raised it, and so remanded for consideration of that unaddressed issue.

[00:30:51] Speaker 02:
And whether it was waived, and that's what we're asking about.

[00:30:53] Speaker 00:
Whether the use of the categorical exclusion made the difference, yeah.

[00:30:57] Speaker 00:
So if you were to try and analogize public environmental review processes to Carr versus Saul, that's going way beyond the scope.

[00:31:06] Speaker 01:
of the remand, but that's not even... Well, I tend to agree with you in this sense that the presumption in our Petric opinion was that there is a general administrative waiver requirement, and we said that wasn't met here, and then we remanded to say, yeah, but is there something about this categorical exclusion that exempts that?

[00:31:26] Speaker 01:
Yeah.

[00:31:27] Speaker 01:
I think.

[00:31:27] Speaker 01:
Is that a fair restatement of what we did?

[00:31:30] Speaker 00:
I do think that's correct, and I hope I'll have time to turn to that.

[00:31:34] Speaker 00:
You know there are also many cases for this court like lands council Buckingham Barnes all cited in the briefs although they might be the yeah that apply the administrative waiver rule to NEPA cases after Sims which basically has the same holdings that are relevant or well that aren't relevant in our opinion be The holdings about we don't do this in we only do this in adversary things and less adversary it is that is confined to

[00:32:03] Speaker 00:
to the spectrum of quasi-judicial proceedings.

[00:32:07] Speaker 00:
The cases where the big public process are governed by a different line of cases, public citizen and Vermont Yankee.

[00:32:16] Speaker 01:
And beyond that, I would just also add that the... Is that your argument that if it's an adversarial proceeding, then we look to the car factors, or the more adversarial it is we look to the car factors, the more open...

[00:32:33] Speaker 00:
It's not the adversarialness or not.

[00:32:35] Speaker 00:
That is a car factor.

[00:32:37] Speaker 00:
But whether the car factors even apply, that line of cases is confined to the quasi-judicial, individualized determinations, like Social Security benefits hearings.

[00:32:49] Speaker 00:
I'm not saying it's only Social Security benefits hearings, but it would be individualized determinations.

[00:32:54] Speaker 01:
What about that DC Circuit case that Judge Forrest mentioned?

[00:32:57] Speaker 00:
Was that a... I'm so sorry.

[00:32:58] Speaker 00:
I'm just not familiar with that one.

[00:33:00] Speaker 02:
Why we might need supplemental briefing.

[00:33:02] Speaker 00:
If the court decides to go, you know, to dig into this Carr versus Saul issue, then I certainly think that supplemental briefing would be necessary.

[00:33:10] Speaker 00:
But I would just caution that this case is governed by public citizen, right?

[00:33:15] Speaker 00:
I mean, this is not technically NEPA, but it is, I mean, you look at it, is this more like a social security benefits determination or is it more like an EA?

[00:33:24] Speaker 00:
It's obviously much, much more like an EA.

[00:33:27] Speaker 00:
And I should probably turn quickly to the principal argument that they're also making.

[00:33:32] Speaker 00:
about the statute and whether the statute provides an exemption here.

[00:33:39] Speaker 00:
It simply does not, this Loper-Brite and deference have nothing to do with this argument at all.

[00:33:44] Speaker 00:
We've never argued for deference.

[00:33:45] Speaker 00:
But we're certainly allowed to advance our own statutory interpretation argument.

[00:33:51] Speaker 00:
And the statute is quite clear.

[00:33:52] Speaker 00:
It says absolutely nothing whatsoever about exempting them from the judicially imposed administrative waiver rule.

[00:34:01] Speaker 00:
That's simply not in there.

[00:34:02] Speaker 00:
They would like you to infer it from two different provisions.

[00:34:07] Speaker 00:
The first provision is the administrative review provisions, which is sort of like an administrative appeal process.

[00:34:15] Speaker 00:
And that process, if you want to, you have to take one of these administrative appeals as an exhaustion of administrative remedies matter.

[00:34:25] Speaker 00:
And in order to take one of those administrative appeals, you have to,

[00:34:29] Speaker 00:
have first raised your issues and comments.

[00:34:33] Speaker 00:
Then, I think it's 11 years later, Congress amended the Healthy Forest Restorations Act, added this categorical exclusion that this litigation has all been about.

[00:34:46] Speaker 00:
And we've talked about before how the purpose of that was to expedite things, because these forests were getting sicker and sicker before the projects could be done in there to try and make them healthy again.

[00:34:58] Speaker 00:
And so the categorical exclusion was intended to expedite that.

[00:35:03] Speaker 00:
And as part of that expediting it, Congress exempted them from the review process because that's just another administrative process that would have to be gone through.

[00:35:14] Speaker 00:
It would slow things down.

[00:35:16] Speaker 00:
I think that's pretty clearly Congress' statutory intent in exempting these decisions under the categorical exclusion provision.

[00:35:26] Speaker 00:
from the administrative review process.

[00:35:28] Speaker 00:
They're just trying to expedite things.

[00:35:29] Speaker 02:
So I want to ask a question about that.

[00:35:31] Speaker 02:
Assume for the purposes of my question that you're in that world, that the categorical exclusion applies.

[00:35:37] Speaker 02:
Do you think that there is a statutory provision for issue exhaustion in that context?

[00:35:43] Speaker 00:
No.

[00:35:43] Speaker 00:
There's no statutory provision.

[00:35:44] Speaker 02:
So you agree with Council for Alliance that there is no statute that governs this topic?

[00:35:48] Speaker 00:
That's correct.

[00:35:49] Speaker 00:
And so what they want you to do is infer a statutory exemption, and it's just not rational.

[00:35:54] Speaker 00:
There's no reason to believe.

[00:35:56] Speaker 00:
that Congress intended.

[00:35:58] Speaker 00:
As one of the cases we've cited in our brief says, this expressio unius canon only applies when there's reason to believe that Congress thought about it and meant to exclude it.

[00:36:08] Speaker 00:
It's impossible to think that Congress in this case, when they were saying we want these projects to move, we're going to create a categorical exclusion, we're going to exempt it from the administrative exhaustion requirements that they said,

[00:36:21] Speaker 00:
But let's make it so that they're also exempt from the requirement to raise their issues before the agency so that they can just not comment and then go straight to court and send the agency back to square one.

[00:36:31] Speaker 02:
Before we run out of time, I have a practical question.

[00:36:34] Speaker 02:
If we disagree with you and conclude that waiver doesn't apply here and the alliance can raise this argument even though it didn't raise it in the comment period, where does that leave the rest of this case?

[00:36:46] Speaker 00:
The rest of this case is Hannah Flats II, which just had a summary judgment hearing in the district court late February, and that's the issue about Rhodes that you may remember from the last case, the last appeal.

[00:37:03] Speaker 00:
That's the only issue in that case.

[00:37:06] Speaker 00:
Have I answered your question?

[00:37:08] Speaker 02:
I'm not quite sure.

[00:37:09] Speaker 02:
So if we say that Alliance didn't forego its ability to bring this challenge to the categorical exclusion applying, then won't the district court have to go back and look at... I mean, this is where I'm a little bit confused because we say a few things about that in our prior decision about application of the categorical exclusion and the agency's interpretation.

[00:37:34] Speaker 02:
of the requirements of that exclusion.

[00:37:37] Speaker 02:
But there's still something to be done there, right?

[00:37:39] Speaker 00:
I misunderstood your question.

[00:37:41] Speaker 00:
What would become of this?

[00:37:43] Speaker 00:
I guess we'd go back for a determination on the merits of whether this project is within a validly designated wildland-urban interface.

[00:37:52] Speaker 00:
To some extent, I think we already decided that.

[00:37:55] Speaker 00:
That's the problem.

[00:37:57] Speaker 00:
No.

[00:37:58] Speaker 00:
The script held that we can't rely on the community wildfire protection plan alone.

[00:38:03] Speaker 00:
But there was other evidence in the scoping notice that this is very near the town.

[00:38:08] Speaker 04:
So you would try to show that it is still within the definition notwithstanding.

[00:38:13] Speaker 00:
Right.

[00:38:13] Speaker 00:
And this brings up the issue that the requirement that you exhaust your issues, which by the way, the Supreme Court hasn't used the term issue exhaustion in the NEPA context.

[00:38:22] Speaker 00:
That term's been only used in the, so I think we'll stick with waiver.

[00:38:26] Speaker 00:
But the requirement that you raise your issues before the agency,

[00:38:31] Speaker 00:
or else you can't bring them in court is intimately tied up with the requirement that the agency's decision be defended on the reasons given by the agency.

[00:38:39] Speaker 00:
If the agency isn't given notice of the complaint, of the objection, then how is it supposed to have squarely addressed it, right?

[00:38:48] Speaker 00:
So the structure of administrative review, you know, APA review in the courts really depends on the plaintiffs taking advantage of the opportunity that notice incoming gives them.

[00:38:59] Speaker 00:
and raising their objections before the agency.

[00:39:04] Speaker 00:
And I would just like to close, if I'm out of time, with the Supreme Court was very concerned about the misuse of this process and cautioned Vermont Yankee

[00:39:15] Speaker 00:
The administrative proceeding should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that ought to be considered.

[00:39:25] Speaker 00:
And then after failing to do more to bring the matter to the agency's attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters presented.

[00:39:35] Speaker 00:
When you think about, in these NEPA cases, the remedy if you win is a do-over.

[00:39:42] Speaker 00:
So they have every incentive for a delay.

[00:39:44] Speaker 00:
Not raising the issues and I think the Supreme Court took that into account when they created this line of cases that governs this case Thank You counsel will give you time for rebuttal Thank you your honors I have just three points.

[00:40:03] Speaker 03:
I'd like to address first this case is not a

[00:40:06] Speaker 03:
like Public Citizen or Vermont Yankee, both of those cases had full administrative review proceedings and full NEPA analyses.

[00:40:15] Speaker 04:
What exactly is the difference in kind, though, between the notice and comment that was given in those cases and the notice and opportunity comment that was given here?

[00:40:25] Speaker 04:
I mean, it seems that there was actual notice that's conceded.

[00:40:28] Speaker 04:
There was actual response and comment, extensive and actual response by the agency to those comments.

[00:40:36] Speaker 04:
I understand that there's a formal difference because one was in an EA and one was in that scoping that wasn't actually you know they were where there was a claimed exception from EA but in the kind of notice and comment opportunity that was given here.

[00:40:52] Speaker 03:
So Vermont Yankee had a mandatory adjudicatory hearing.

[00:40:55] Speaker 03:
That's an adversarial proceeding and that puts them right in the space of where Carr said it would be appropriate to have issue exhaustion.

[00:41:03] Speaker 03:
In public citizen it was a formal APA notice and comment rulemaking procedure and then a full Environmental assessment and so those are that's a common area where we apply issue exhaustion in formal notice and comment APA rulemaking because that is deemed to be adversarial proceedings so where do you see where is there a case that actually describes formal notice and comment rulemaking is adversarial and

[00:41:31] Speaker 03:
Your honor I would I would ask to be able to permit a supplemental brief on that if that's an issue that the court wants to hear another important point though is that because public citizen had a full EA and Vermont Yankee had a full EIS if we applied this statute that we're actually talking about today 6515 and

[00:41:51] Speaker 03:
Scoping comments would have been required because under section 6515 if they do an EA or if they do an EIS then that does trigger issue exhaustion and that does trigger a mandatory requirement for comments and so all the cases that that are being cited by the government if they would have happened under the Healthy Forest Restoration Act we wouldn't be here today because there would be no dispute that there would have been a public comment requirement and

[00:42:20] Speaker 03:
But the fact is, we didn't have that here.

[00:42:22] Speaker 01:
But you just thought that when you submitted your hundreds of pages, that was just a voluntary process.

[00:42:28] Speaker 01:
It didn't have any implications.

[00:42:30] Speaker 03:
It was absolutely voluntary, Your Honor.

[00:42:33] Speaker 01:
But isn't comment always voluntary?

[00:42:36] Speaker 01:
You put it out for notice and comment.

[00:42:38] Speaker 01:
The statute can't require you to file a comment.

[00:42:44] Speaker 01:
It puts it out for notice and comment.

[00:42:46] Speaker 01:
They consider your comments, and they make adjustments based on it.

[00:42:49] Speaker 03:
No, your honor, section 6515 absolutely requires public comments if there is an EA or an EIS.

[00:43:00] Speaker 03:
And I want to just touch, too, on the concurrence in CAR, which was Justice Thomas Gorsuch and Barrett's concurrences really do talk about that.

[00:43:12] Speaker 03:
Unsurprising reminders that a claimant should not sit idly on the sidelines hardly demand that the penalty for overlooking an argument is forfeiture.

[00:43:22] Speaker 03:
So this general idea that you had the opportunity to comment, and maybe you should have, that doesn't necessarily mean that in response you have this extreme penalty of forfeiture.

[00:43:32] Speaker 03:
That's 593 U.S.

[00:43:34] Speaker 03:
at 97.

[00:43:35] Speaker 03:
And then the court went on in the concurrence to say,

[00:43:39] Speaker 03:
Because these proceedings bear little resemblance to adversarial litigation, I agree with the court that there is no need for an exhaustion rule, and I would end the analysis there.

[00:43:50] Speaker 03:
And so that goes back to Judge Sung's earlier question about these other considerations.

[00:43:54] Speaker 03:
The concurrence in Carr actually said,

[00:43:57] Speaker 03:
We wouldn't have even gotten to those because we find that this is so unlike an adversary proceeding that we should not impose issue exhaustion and we end it there.

[00:44:06] Speaker 03:
And then finally, just one last point.

[00:44:10] Speaker 03:
I also just want to mention Justice O'Connor's concurrence in Sims.

[00:44:14] Speaker 03:
where she said, quote, I write separately because in my view the agency's failure to notify claimants of an issue exhaustion requirement in this context is a sufficient basis for our decision that's 530 US at 113 to 114.

[00:44:30] Speaker 03:
And I just want to emphasize that there was no notice to the public that there was an issue exhaustion requirement.

[00:44:37] Speaker 03:
There was no notice to the public that a failure to raise a specific issue in response to a scoping notice would then result of a forfeiture.

[00:44:48] Speaker 01:
Agree with you.

[00:44:49] Speaker 01:
I don't think there's a lot of dispute about that.

[00:44:51] Speaker 01:
So that's all I have.

[00:44:52] Speaker 01:
All right, you know, thank you.

[00:44:52] Speaker 01:
Thank you so much Thank you to both Parties for your arguments in this case You've given us a lot to think about and the case is now submitted and that concludes our arguments for the day.

[00:45:03] Speaker 01:
Thank you