[00:00:00] Speaker 04:
We'll move on to case number 258008, Wyobin v. Bergen.

[00:00:17] Speaker 02:
Good morning, Your Honors.

[00:00:18] Speaker 02:
Robert Marsh on behalf of the appellants.

[00:00:20] Speaker 02:
With me today at counsel's table is my co-counsel, Mr. William Marsh.

[00:00:24] Speaker 02:
May it please the Court, this Court ruled in its prior opinion

[00:00:29] Speaker 02:
in this same case.

[00:00:31] Speaker 02:
And I quote, for placer claims like wild bends, the relevant statute, 30 USC, section 35, requires the applicant to tender payment of the purchase price.

[00:00:46] Speaker 02:
And as if that weren't enough, the respondents admitted as much in oral argument in the district court when Ms.

[00:00:54] Speaker 02:
Peters said, publication happens

[00:00:57] Speaker 02:
And then final proofs are provided to the BLM office, along with a tender of the purchase price.

[00:01:07] Speaker 02:
It's undisputed in the record, Your Honors, that Wilde Bend did exactly that on August 30 of 1993, when it delivered a check for the full purchase price for its claims to the BLM state office in Wyoming, exactly as this court ruled

[00:01:26] Speaker 02:
was its statutory obligation under the statutes selected by Congress as defining the bounds of Wyle Bend's entitlement to further processing, notwithstanding

[00:01:39] Speaker 02:
the patenting moratorium.

[00:01:41] Speaker 01:
But counsel, timing matters, doesn't it?

[00:01:43] Speaker 01:
I mean, just the tendering of payment alone, depending on where you are on the process.

[00:01:47] Speaker 01:
I mean, isn't that really the merits question before us?

[00:01:49] Speaker 01:
I mean, this sounds to me like you mailing in an application to university and sending a check and saying, well, I paid you, so you have to admit me now.

[00:01:57] Speaker 01:
Why isn't this different?

[00:02:00] Speaker 02:
It's different, Your Honor, because Congress has said so.

[00:02:04] Speaker 02:
What Congress selected as defining the applicant's entitlement to further processing is five specific statutes from the general mining law.

[00:02:13] Speaker 02:
What those statutes require is that the applicant tender payment of the purchase price.

[00:02:21] Speaker 02:
And the time in question Your Honor is addressing is really answered by when are the final proofs submitted.

[00:02:30] Speaker 02:
That is answered in the regulations and in the law

[00:02:33] Speaker 02:
that Congress selected as well as once the final proofs are submitted and publication has ended without an adverse claim being submitted, then the applicant has both the right under the regulations and the obligation under the statute to tender the purchase price.

[00:02:51] Speaker 02:
In that case, that's exactly what happened.

[00:02:54] Speaker 02:
Publication ended without an adverse claim while Ben tendered its final proofs as it was obligated to do and tendered the purchase price.

[00:03:03] Speaker 02:
At that moment, Wilde Bend had done everything that it could do and that was required by the statute's Congress selected as defining its entitlement to complete its application.

[00:03:22] Speaker 02:
It's also worth note, Your Honors, that the merits of Wilde Bend's claim are really uncontested.

[00:03:29] Speaker 02:
In Respondent's brief on the merits,

[00:03:33] Speaker 02:
In the district court, respondents have admitted that the 1997 review of Wyo Bend's application that is their current iteration of we've already done this.

[00:03:45] Speaker 02:
They have admitted that that review was not done on the basis of only Wyo Bend's actions to comply with the general mining law, as this court has repeatedly ordered is the standard.

[00:04:01] Speaker 04:
Can I get you to back up?

[00:04:03] Speaker 04:
I'm confused honestly as to why we are here.

[00:04:07] Speaker 04:
The last appeal, Judge Holmes and the panel repeated over and over and over again that the only reason your 30-year-plus claim was timely was because you were alleging agency inaction.

[00:04:26] Speaker 04:
And that that was what the panel decided was a repeated violation, not a continuing violation, but a repeated violation.

[00:04:34] Speaker 04:
It said it over and over and over again.

[00:04:38] Speaker 04:
This is an agency inaction claim.

[00:04:42] Speaker 04:
Now, we go back and the district court said, well, it turns out, yes, the debt secretary did act.

[00:04:48] Speaker 04:
And they acted through BLM.

[00:04:50] Speaker 04:
And they acted lawfully through BLM.

[00:04:54] Speaker 04:
We come back now on appeal.

[00:04:56] Speaker 04:
and you say we're not challenging, it's not even, it's moot whether the agency, whether, in your footnote 17 you say the delegation issue is moot regardless of whether BLM or the secretary had authority to issue because no one within the department of the secretary on down ever has the authority to disobey a congressional command.

[00:05:17] Speaker 04:
You have completely switched now and we're no longer talking about inaction

[00:05:23] Speaker 04:
as far as I can tell, which was the only basis for this case still being alive after all these years, is that the agency had failed to act.

[00:05:35] Speaker 04:
And now that's not even seeming to be where you're at anymore.

[00:05:40] Speaker 04:
And in fact, you say it doesn't really matter whether the secretary acted.

[00:05:46] Speaker 04:
How does that not just end this case as

[00:05:51] Speaker 04:
The appellees essentially argue.

[00:05:53] Speaker 04:
You wouldn't be here if you weren't arguing agency inaction.

[00:05:58] Speaker 02:
It's for a couple of reasons, Your Honor.

[00:06:00] Speaker 02:
So number one is what is moot is whether the BLM was entitled to act.

[00:06:06] Speaker 04:
And it's moot precisely because... Well, you say in the footnote it doesn't matter who acted.

[00:06:12] Speaker 04:
It doesn't matter whether the secretary had authority or acted.

[00:06:16] Speaker 04:
What happened here?

[00:06:17] Speaker 02:
Because they haven't done what Congress ordered.

[00:06:21] Speaker 02:
and they have admitted it.

[00:06:22] Speaker 04:
So as I phrased it to the district court, you cannot say you... You're complaining now about what they did do, not about what they failed to do.

[00:06:32] Speaker 02:
No, Your Honor, we are saying they have failed to do what they were ordered by Congress and this court to do, which is to review Wile Bend's application and determine its qualification by reference only to Wile Bend's actions.

[00:06:48] Speaker 02:
It is undisputed they have never done that, because in their own... That's a new theory, as far as I can tell.

[00:06:55] Speaker 04:
Previously, it was the secretary had never acted.

[00:06:58] Speaker 02:
And the secretary has still never acted, whether by delegation or... And now you say that doesn't make any difference.

[00:07:04] Speaker 02:
What we are saying is it doesn't matter whether the secretary... And that's how you got here.

[00:07:07] Speaker 04:
That's the reason your claim was timely.

[00:07:10] Speaker 02:
And it has always been, exactly as alleged in paragraph 25 of Wyoming's complaint, the gravamen of this case

[00:07:18] Speaker 02:
is neither the Secretary nor any of the Secretary's subordinates has ever done what Congress ordered, which was to review Wyle Bend's application based only on Wyle Bend's actions.

[00:07:32] Speaker 02:
What they did, which is not what Congress ordered,

[00:07:37] Speaker 02:
is to review it based on their own inaction.

[00:07:39] Speaker 04:
You're complaining about what they did.

[00:07:41] Speaker 04:
You're complaining about what they did, which is not inaction.

[00:07:46] Speaker 04:
And the court made that very clear, the distinction between inaction and action in the prior appeal.

[00:07:51] Speaker 02:
Respectfully, Your Honor, what we are complaining about is that they have never done what Congress instructed.

[00:07:59] Speaker 02:
They did something.

[00:08:00] Speaker 04:
You're saying they did something, but you don't think they did the right thing.

[00:08:04] Speaker 04:
That's different than saying they did nothing.

[00:08:06] Speaker 02:
Correct.

[00:08:06] Speaker 04:
And getting here, because it's timely, because you said they never acted.

[00:08:12] Speaker 02:
It's undisputed that they have never done what Congress ordered, Your Honor.

[00:08:16] Speaker 01:
Well, Counsel, there's Supreme Court case law that says in an APA 7061 claim, which is what we have here, that if there is an action, the court's remedy is just to say, take action.

[00:08:28] Speaker 01:
You don't tell them how to do it, which is kind of what I hear you saying.

[00:08:32] Speaker 01:
They've never taken action as Congress directed.

[00:08:36] Speaker 01:
That would be this court saying, you must do it, take some action, and do it in this manner.

[00:08:41] Speaker 01:
Why wouldn't that remedy that you're seeking run afoul of a Supreme Court precedent?

[00:08:47] Speaker 02:
Because there is no discretion left, Your Honor.

[00:08:51] Speaker 02:
Over 30 years, the respondents have never once identified anything in Wildman's application that was incomplete.

[00:09:02] Speaker 02:
that would require them to redo any part of the process.

[00:09:06] Speaker 02:
As a consequence, they've either waived or forfeited those arguments before this court today.

[00:09:11] Speaker 02:
All that is left is the issue of whether, while bent appropriately, tendered the purchase price.

[00:09:18] Speaker 02:
And as I said, it is undisputed that it did so in complete accordance with the law and the statutes that Congress selected as the dispositive issue.

[00:09:27] Speaker 01:
I feel like we're asking the same question maybe repeatedly.

[00:09:32] Speaker 01:
Do you dispute that they made a determination at all about Wyoming's application?

[00:09:38] Speaker 02:
No.

[00:09:39] Speaker 02:
The point is that none of those determinations were bounded by- I get it.

[00:09:44] Speaker 01:
You say they're unlawful.

[00:09:45] Speaker 01:
They didn't follow the statute.

[00:09:46] Speaker 01:
But you agree at least that by not including Wyoming's application as an exception to the moratorium, and then I think it was in an instructional memorandum, that they at least made a decision on it, right?

[00:09:58] Speaker 02:
Yes.

[00:09:58] Speaker 02:
They did something.

[00:10:00] Speaker 02:
But they still have yet to do what Congress and the 10th Circuit told them they had to do.

[00:10:05] Speaker 04:
And that's contrary to the argument you made to this Court in order to come within the statute of limitations.

[00:10:10] Speaker 02:
Respectfully, no, Your Honor.

[00:10:12] Speaker 02:
The argument has always been they didn't do what they were instructed to do.

[00:10:15] Speaker 02:
It has never been that they did nothing.

[00:10:17] Speaker 02:
It's that they have yet to do what they were required to.

[00:10:20] Speaker 04:
Well, that's what this Court found is that there had been inaction, and that's how you got here.

[00:10:27] Speaker 02:
Yes.

[00:10:29] Speaker 04:
Are you saying we misunderstood your argument back then?

[00:10:33] Speaker 02:
No.

[00:10:34] Speaker 02:
If anything has changed, Your Honor, what changed is three years later and after this court's prior determination in this case, the government disclosed some new documents.

[00:10:48] Speaker 02:
That's where the 1997 instruction memorandum came from.

[00:10:54] Speaker 02:
And it remains to this moment undisputed that that

[00:10:59] Speaker 02:
action that that determination, that that review was based on the status of processing by the BLM.

[00:11:08] Speaker 02:
And this court in the Mount Emmons case said the secretary's action is contrary to the moratorium, quote, because the secretary bases the applicant's eligibility for exemption on how far the secretary has processed the application, while, quote,

[00:11:26] Speaker 02:
The moratorium clearly and unequivocally bases the applicant's eligibility only on the applicant's actions.

[00:11:34] Speaker 02:
And so, as it was six years ago, as it remains today, the issue here is in action.

[00:11:42] Speaker 02:
The respondents have never done what Congress has ordered them to do three dozen times.

[00:11:50] Speaker 03:
Council, let me ask a similar question in a slightly different way.

[00:11:57] Speaker 03:
In your petition, the relief you seek is an order requiring the defendants to review the application to determine whether it qualifies for the Section 404B exemption to the temporary moratorium.

[00:12:14] Speaker 03:
Have they not already done this?

[00:12:17] Speaker 02:
Not in accordance with the criteria for that determination that Congress instructed, Your Honor.

[00:12:24] Speaker 02:
They have never applied

[00:12:26] Speaker 02:
the criteria that Congress selected, which is why Oben's actions, to comply with the statute.

[00:12:32] Speaker 04:
And with Your Honor's permission... And that is not a, that does not qualify, what you just said does not qualify as a 5 U.S.C.

[00:12:40] Speaker 04:
7061 unlawfully withholding agency action.

[00:12:45] Speaker 04:
That is complaining about the action the agency took and the reasons it took it.

[00:12:50] Speaker 04:
It is not a 7061, which is what we've said the last time around.

[00:12:57] Speaker 04:
It needed to be in order to come within the statute of limitations.

[00:13:00] Speaker 02:
Respectfully, Your Honor, it is exactly what Mount Emmons said was a 7061 action subject to remedy under the APA.

[00:13:07] Speaker 02:
But with Your Honor's permission, I'll reserve my remaining time.

[00:13:10] Speaker 04:
Okay, thank you.

[00:13:22] Speaker 00:
Good morning.

[00:13:23] Speaker 00:
May it please the court, counsel.

[00:13:27] Speaker 00:
My name is Jasmine Peters, and I'm an Assistant United States Attorney in the District of Wyoming, representing respondents, appellees in this action.

[00:13:35] Speaker 00:
The reason why Wyoming is not entitled to relief under APA Section 7061 can be distilled down to three reasons.

[00:13:45] Speaker 00:
The first is that Wyoming no longer argues agency inaction.

[00:13:51] Speaker 00:
it argues action, which is under 7062.

[00:13:54] Speaker 00:
And that is the argument that is properly before the court.

[00:13:59] Speaker 00:
Aside from that though, two other reasons exist.

[00:14:03] Speaker 00:
One is that BLM acted in 1993 on its patent application, then again in 1994, and again in 1997.

[00:14:15] Speaker 00:
And then finally, the notion that there is an unconditional right to tender payment is one not properly before this court, but aside from that, is unsupported by the Mining Law of 1872, regulations and policy.

[00:14:31] Speaker 00:
While considering all of these points as we go through this this morning, context matters.

[00:14:37] Speaker 00:
What was happening

[00:14:38] Speaker 00:
in the patenting world in 1970 to 1994, before the moratorium came into effect, sheds light on both Wyoming's actions and BLM's actions.

[00:14:51] Speaker 00:
There was no dispute that at this point in time when the moratorium was coming into effect,

[00:14:55] Speaker 00:
that everyone, applicants and staff at BLM, understood that patenting was coming to an end.

[00:15:02] Speaker 00:
The five-year plan, which is in the record, demonstrates that history for the court and does a good job at synthesizing what was going on.

[00:15:11] Speaker 00:
Now, Wyoming initially brought this case under a 706-1 claim.

[00:15:20] Speaker 00:
7061 is asserted when the agency failed to take a discreet agency action it is required to take.

[00:15:30] Speaker 00:
In the brief before the district court, it even acknowledged that the sole issue now before the court is whether the secretary must decide whether the application qualifies referring to the exemption under the moratorium.

[00:15:45] Speaker 00:
Wyoming also initially argued that BLM lacked authority to act.

[00:15:52] Speaker 00:
But in Wyoming's opening brief to this court in footnote seven, it referred to those issues as moot.

[00:15:58] Speaker 00:
It also referred in footnote one of the reply as irrelevant and argued the same in the district court.

[00:16:05] Speaker 00:
But whether BLM had the authority to take action and whether it did take that action,

[00:16:11] Speaker 00:
in on why opens 1993 application is precisely the issue that was before the court and that was previously argued.

[00:16:19] Speaker 00:
But as this court knows a failure to act is not the same thing as a denial.

[00:16:26] Speaker 01:
So may I stop you once that you just said a moment ago that why have been originally brought this action is a 7061.

[00:16:31] Speaker 01:
I mean isn't it still a 7061 as we appear in court today.

[00:16:37] Speaker 00:
On its face, that is why we're here.

[00:16:40] Speaker 00:
However, when we're looking at the actual arguments, they are arguing agency action.

[00:16:47] Speaker 00:
Whether you call it 7061 or not, we have to look to what is actually being argued.

[00:16:53] Speaker 00:
And it matters.

[00:16:54] Speaker 04:
But what about the fact that we're only here because the prior panel called it a 7061 and said that's why, that's why it's not barred.

[00:17:07] Speaker 04:
Timewise.

[00:17:09] Speaker 04:
And we wouldn't be here if that hadn't happened.

[00:17:12] Speaker 00:
You're correct.

[00:17:12] Speaker 00:
In 2023, this court previously held that the statute of limitations argument that was raised under 2401, the six-year statute of limitations, did not apply specifically to a 706.1 argument because the repeated violations doctrine applied.

[00:17:33] Speaker 00:
That is different.

[00:17:34] Speaker 00:
The arguments have shifted.

[00:17:36] Speaker 00:
since that time.

[00:17:37] Speaker 00:
So now what is happening is we're still under the premise of a 7061 claim while it, Wyoming is arguing agency action, which is not properly before the court.

[00:17:50] Speaker 04:
Well, shouldn't that cause us to reconsider the statute of limitations issue?

[00:17:56] Speaker 00:
Yes, if the court understands that Y. Oben's argument has morphed into a 7062 claim, the respondents of the court argue that it is barred by the statute of limitations.

[00:18:10] Speaker 04:
And how can we allow it to morph when we've already said, based on what they said it was, it's timely.

[00:18:20] Speaker 04:
But had they said it was what it is now, what it's morphed into, it would not have been timely.

[00:18:25] Speaker 04:
It seems like a runaround around our prior opinion.

[00:18:29] Speaker 04:
You get in there and you find out, okay, we're okay, we can bring this, and then you change your approach.

[00:18:38] Speaker 04:
Or you keep your approach, but I don't know.

[00:18:41] Speaker 04:
I'm confused as to what we do with our prior opinion.

[00:18:44] Speaker 04:
That is the basis for saying this case was timely to begin with.

[00:18:49] Speaker 00:
So based on what Y. O. Ben has argued and what it has argued since that opinion, when 7061, that claim first came, Y. O. Ben was arguing that the secretary never acted.

[00:19:01] Speaker 04:
Right.

[00:19:01] Speaker 00:
He also argued that BLM never had the authority to act.

[00:19:05] Speaker 00:
But since then, it has waived that argument.

[00:19:07] Speaker 00:
It has changed course after the remand.

[00:19:10] Speaker 04:
So the remand order... Well, you don't get to change course when you're only there.

[00:19:14] Speaker 04:
I thought that was your position in your response brief is we should not even consider the merits of this because

[00:19:22] Speaker 04:
You don't get to change course when that was the basis for finding the action was timely to begin with.

[00:19:28] Speaker 04:
Your Honor, you are correct.

[00:19:29] Speaker 04:
So I'm kind of confused as to why you're not being, you're not asserting that today.

[00:19:33] Speaker 00:
I am asserting that.

[00:19:34] Speaker 00:
I am asserting that this case is only properly reviewed under a 7061 claim.

[00:19:39] Speaker 00:
However, the district court did go into a 7062 analysis and because of that... And why should we pay attention to that?

[00:19:48] Speaker 00:
Your Honor, I don't think you need to.

[00:19:50] Speaker 00:
I think this case can be properly resolved under 7061.

[00:19:54] Speaker 00:
In fact, by Wyoming's own admissions, that BLM did act and it did have authority.

[00:19:59] Speaker 00:
There is no dispute on that.

[00:20:01] Speaker 00:
But if the court wanted to look into the issues that were reviewed by the district court and argued by Wyoming, the untimely

[00:20:07] Speaker 04:
the untimely claims that were barred by the statute of limitations.

[00:20:12] Speaker 00:
They are.

[00:20:12] Speaker 00:
But even if you wanted to look at them, the record in this case is quite clear that BLM acted and acted with proper delegated authority.

[00:20:22] Speaker 00:
And even if you considered a 7062 claim, which is not properly before this court, you can still find that it is in accordance with the law based on the regulations, the mining law, and policy.

[00:20:35] Speaker 00:
And so those are the arguments before this court.

[00:20:38] Speaker 00:
Primarily, the 7061 claim that is properly before this court should be the answer to this court's ability to affirm the judgment.

[00:20:48] Speaker 01:
Counsel, can I just make sure on the timeline that I understand when the morph occurred?

[00:20:52] Speaker 01:
So this case is before this court.

[00:20:56] Speaker 01:
The panel opinion, as we've been discussing, calls it a 7061 action, discusses statute of limitations, and you said the morph happened when it

[00:21:04] Speaker 01:
went back on a remand before the district court.

[00:21:07] Speaker 01:
Was it there and before the district court that Y.O.

[00:21:11] Speaker 01:
Ben then repackaged a 7061 to a 7062 argument?

[00:21:17] Speaker 01:
Because even as I look at the opening brief, they don't even mention 7062, which I think you pointed out in your response brief.

[00:21:23] Speaker 01:
So did they sort of change horses mid-race before the district court, or did that not happen until the reply brief here maybe?

[00:21:31] Speaker 00:
When I review this case and I looked at Wyo Ben's arguments, it seems as though once IM 97165 came to light in accordance with Wyo Ben's opinion, it came to light.

[00:21:45] Speaker 00:
That's when the arguments shifted to argue that IM is no longer in accordance with law, and so therefore there was no action, which is an argument we dispute.

[00:21:58] Speaker 00:
Those arguments

[00:21:59] Speaker 00:
did change from agency inaction to action without explicitly saying so.

[00:22:06] Speaker 00:
But as the record shows, IM 97165 was an instructional memorandum that came into effect after Mount Ammons.

[00:22:15] Speaker 00:
This was not a memorandum that was hidden to Wyo Bend.

[00:22:19] Speaker 00:
Wyo Bend knew of this memorandum.

[00:22:22] Speaker 00:
it knew of the action that was being taken.

[00:22:24] Speaker 00:
And in fact, one of the applications that was allowed to proceed under Mt.

[00:22:29] Speaker 00:
Emmons and that memorandum was Richard K. Brown, an affiliate of WIOBEN.

[00:22:36] Speaker 00:
And so to claim that IM-9165, 97165 was somehow just brought into the court at a later date is

[00:22:48] Speaker 00:
is not correct.

[00:22:50] Speaker 00:
It's a public document.

[00:22:51] Speaker 00:
It was well known.

[00:22:52] Speaker 04:
Well, even if it was, you don't just morph into a new argument.

[00:22:57] Speaker 04:
That's correct.

[00:22:58] Speaker 04:
You seek to amend your complaint.

[00:22:59] Speaker 04:
You do something.

[00:23:01] Speaker 04:
You don't change your argument.

[00:23:03] Speaker 00:
And presumably, why Open understands this and is why it hasn't argued a 706-2 claim, because it is statutorily barred.

[00:23:11] Speaker 00:
There's no question about it.

[00:23:14] Speaker 00:
And so I think that is why we're here today continuing to argue a 706-1 claim under interesting and convoluted arguments that have really hinged on agency action.

[00:23:28] Speaker 00:
And Mount Emmons is different.

[00:23:30] Speaker 00:
than this case.

[00:23:32] Speaker 00:
Same with Vanderbilt.

[00:23:33] Speaker 00:
When we look at the cases that came before this one, those cases were different in many respects, specifically the factual differences, but more so in those cases, the appellant applicants were not arguing that their application hadn't been decided whether or not it was subject to a moratorium.

[00:23:55] Speaker 00:
In Mount Emmons, the whole issue is whether the physical location of the application under IM9501 was in accordance with the law.

[00:24:05] Speaker 00:
And that court did look at 7062 and 7061, at least from the order that has been published.

[00:24:12] Speaker 00:
That's what we see.

[00:24:15] Speaker 00:
But throughout the record, if this court wanted to dive into whether or not the BLM took action, it clearly did.

[00:24:24] Speaker 00:
And Y.O.B.

[00:24:24] Speaker 00:
does not argue to the contrary.

[00:24:27] Speaker 00:
And where you can see that most specifically is on August, I believe, 31st, 1993, there was a correspondence exchange between the parties.

[00:24:39] Speaker 00:
At that point in time, that's when Y.O.B.

[00:24:42] Speaker 00:
had attempted to submit payment, which again,

[00:24:45] Speaker 00:
premature, it was an asked for, called for by the BLM office.

[00:24:51] Speaker 00:
And that was a determination made in 1993, well before the moratorium came into effect.

[00:24:57] Speaker 00:
And so this notion that Y. O. Ben had an unconditional right to tender payment is not supported by the regulations.

[00:25:06] Speaker 00:
the Mining Law of 1872 or policy.

[00:25:09] Speaker 00:
And we can see that most specifically when we look to the regulation on payment of the purchase price, 43 CFR 3862.4-6, in that regulation, it specifically says that the authorized officer referring to the appropriate BLM office will,

[00:25:30] Speaker 00:
If no other objection appears, so to determine whether an objection appears, you have to review it, will permit the applicant to pay.

[00:25:40] Speaker 00:
By its own language, it is clear that the authorized officer is the one to grant permission for payment.

[00:25:50] Speaker 00:
And so when we take all of this together, the court should affirm the district court

[00:25:56] Speaker 00:
that on its determination that Wildman failed to bring a 7061 claim because the BLM did act on its application and acted with undisputed delegated authority.

[00:26:09] Speaker 00:
And aside from that, if the court has any other questions, the respondent's appellees respectfully request that it affirm the judgment in this case.

[00:26:19] Speaker 04:
Thank you.

[00:26:19] Speaker 04:
Thank you.

[00:26:20] Speaker 04:
Thank you.

[00:26:21] Speaker 04:
Rebuttal?

[00:26:28] Speaker 02:
May it please the court, like most other issues in this case, the controlling decision here is this court's decision in Mt.

[00:26:35] Speaker 02:
Emmons.

[00:26:36] Speaker 02:
In that case, the respondents had done exactly what they have now revealed to us they did to Wyoming.

[00:26:48] Speaker 02:
They accepted an application, they received the purchase money, and then they issued an instruction memorandum that says, we don't have to process this any further.

[00:26:59] Speaker 02:
That is exactly what happened here.

[00:27:01] Speaker 02:
And the Mount Emmons Court looked at those facts, which notably are not that the respondents had done nothing, but that what they had done is not what they were ordered to do, because they had misapplied the criteria established by Congress.

[00:27:20] Speaker 02:
And on that basis, the Mount Emmons Court found that

[00:27:25] Speaker 02:
The respondents had unlawfully withheld administrative action required by a clear and unequivocal act of Congress.

[00:27:34] Speaker 02:
That's exactly what has happened here, and it's exactly the same in action.

[00:27:40] Speaker 02:
A simple analogy.

[00:27:42] Speaker 02:
If Congress ordered the Department of the Interior to go paint a fence white, and the Department of the Interior went out and painted a garage red,

[00:27:51] Speaker 02:
They could not say that they had done what Congress ordered.

[00:27:55] Speaker 02:
And the failure to do that is the inaction under Section 7061.

[00:28:00] Speaker 02:
I would also like to mention that Ms.

[00:28:05] Speaker 02:
Peters' argument about Wildman had no right or obligation to tender this is contradicted by the respondent's own regulations at 43 Code of Federal Regulations 3862.6-1,

[00:28:20] Speaker 02:
which establishes that obligation.

[00:28:22] Speaker 02:
But my time is up unless Your Honors have any other questions.

[00:28:26] Speaker 04:
All right.

[00:28:27] Speaker 04:
Thank you very much.

[00:28:27] Speaker 04:
Appreciate it.

[00:28:28] Speaker 02:
Thank you, Your Honors.

[00:28:30] Speaker 04:
Appreciate both your arguments, Counsel.

[00:28:32] Speaker 04:
The case will be submitted and counsel are excused.