[00:00:01] Speaker 00:
Case number 15-5304 at L. Propertors Industrial Council at L. Lewis County, a municipal corporation of the state of Washington at L. Appellants.

[00:00:11] Speaker 00:
Mr. Sally Jewell at L. Mr. Rutzett for the Appellants.

[00:00:15] Speaker 00:
Mr. Drummond for the Appellants.

[00:00:17] Speaker 00:
Lewis County at L. And Mr. Gray for the Appellees.

[00:00:30] Speaker ?:
Okay.

[00:01:04] Speaker 06:
Good morning.

[00:01:05] Speaker 06:
Good morning.

[00:01:06] Speaker 06:
I place the card on Mark Rutzek, representing the Carpenters Industrial Council.

[00:01:11] Speaker 06:
Plaintiffs, which include a labor union of lumber workers, a county in California, lumber producers, and forest land owners.

[00:01:24] Speaker 06:
In the Pacific Coast states, much of the forest land is distributed in a checkerboard of one-mile sections, the bulk sections, which alternate between federal ownership and private ownership.

[00:01:42] Speaker 06:
Typically, the distribution is you have a section of federal land that is surrounded on all four sides by private land.

[00:01:52] Speaker 06:
And it's next to a section of private land that is surrounded on all four sides by federal land.

[00:02:00] Speaker 06:
Usually, the Forest Service or the Interior Department manages the federal land.

[00:02:07] Speaker 06:
On pages 91 and 92 of the Joint Appendix, we describe the checkerboard relationship between one of our plaintiffs, Seneca Jones Timber Company, and the adjoining Federal Link.

[00:02:21] Speaker 05:
Let me ask you, Mr. Resick, how are the declarations in support of standing, in this case, different from those brought in Swanson Group that were found

[00:02:35] Speaker 05:
lacking well they are completely different because the declarations the nine that distinguish between the three original declarations and the nine what we call the new declarations let's talk about the original declarations obviously there's an issue about whether we can look at the nine but let's just focus on the three original declarations how were they different from those that were found lacking in swanson group

[00:03:03] Speaker 06:
I would say that they're not different in any significant way.

[00:03:07] Speaker 05:
So in that case, if we were not to allow them... They're not different?

[00:03:12] Speaker 06:
They are different.

[00:03:14] Speaker 06:
Well, they're different on the issue presented in the Swanson case, which was economic injury.

[00:03:24] Speaker 06:
And the fault was we didn't rule out every other possible cause of injury.

[00:03:31] Speaker 06:
other than reduction in timber sales.

[00:03:35] Speaker 06:
There's also nothing here in this case about ruling out the other causes of timber sales.

[00:03:42] Speaker 03:
We don't know how to do that.

[00:03:44] Speaker 03:
On the number of people who lost jobs and

[00:03:48] Speaker 03:
the shutdown of the plant.

[00:03:49] Speaker 03:
This had specifics that Swanson did not.

[00:03:52] Speaker 06:
That is correct.

[00:03:53] Speaker 06:
From the Carpenters' Industrial Council representative, it has the number of lost jobs.

[00:03:59] Speaker 03:
Which was the key fact that

[00:04:02] Speaker 03:
Swanson Court pointed to that was missing from the Swanson Declaration.

[00:04:05] Speaker 06:
So in that sense, of course, there is a difference.

[00:04:09] Speaker 06:
I was kind of focusing on the other issue.

[00:04:11] Speaker 03:
I know you're focusing on the other issue.

[00:04:13] Speaker 06:
So I'll take back my concession to that extent, if it was a concession.

[00:04:21] Speaker 06:
The new decorations, and I'll talk about that in a minute,

[00:04:26] Speaker 06:
are do clearly address what was what the Swanson court said was missing.

[00:04:36] Speaker 06:
We learn from our mistakes and we try to correct our mistakes.

[00:04:40] Speaker 06:
I was the counsel on the Swanson case, so obviously

[00:04:44] Speaker 06:
after the decision, we try to provide the information that the appellate court says we have to have.

[00:04:50] Speaker 06:
So that information is in the record.

[00:04:53] Speaker 06:
Particular pages 112 and 113 of the record, the declaration from the representative of the Ruffin writing company.

[00:05:01] Speaker 05:
We have lots of authority that suggests that that's too late, right?

[00:05:04] Speaker 05:
You're supposed to bring that into your stage of the proceedings, and that's what the district court ruled on the newer declaration.

[00:05:14] Speaker 06:
The question of showing good cause for filing the declarations is really the key issue because what happened was the government filed their response to the show cause order after we did and in that they said you didn't show good cause.

[00:05:36] Speaker 06:
Now, before that moment, we didn't have any reason to believe we had to show good cause, because we were counted in probably painful detail all of the cases going back to the 18th century, where parties have submitted declarations in response to the show cause orders without ever in a single case having to show good cause.

[00:05:59] Speaker 02:
So what if, I was a little bit confused by this, because

[00:06:03] Speaker 02:
Whatever my traditionally attend in order to show cause if the district court just says after the fact Yeah, I issued something called in order to show cause I've now done the common law the rich common law history that You all had done and I realized that I made an error in terminology What I what I wanted was briefing That's what I wanted

[00:06:25] Speaker 02:
Then would we be here?

[00:06:27] Speaker 02:
Because it just seems like it's within the district court's discretion at this stage of the case to say, I've already got factual information on standing.

[00:06:35] Speaker 02:
You already had a chance to give me affidavits.

[00:06:38] Speaker 02:
Yes, we have a new decision, and I want briefing on whether that new decision affects the existing lay of the land.

[00:06:43] Speaker 02:
I issued an thing called an order to show cause.

[00:06:45] Speaker 02:
I didn't realize that it had all these trappings associated with it.

[00:06:48] Speaker 02:
I'm just going to look at briefs.

[00:06:50] Speaker 06:
No, we would still be here, because in any event, we have the right to request filing of new declarations upon it showing no good cause.

[00:07:02] Speaker 06:
And the problem in the district court was that when the government said we didn't have good cause, we tried to show the good cause.

[00:07:09] Speaker 06:
We filed a brief that showed the good cause, and the district court refused.

[00:07:15] Speaker 02:
Your argument for good cause was twofold.

[00:07:17] Speaker 02:
One is we got an order to show cause.

[00:07:20] Speaker 02:
And therefore there's good cause.

[00:07:22] Speaker 02:
And I'm just taking that one out because I'm just saying the district court just says, yeah, I filed it as an order to show cause.

[00:07:27] Speaker 02:
That was just wrong.

[00:07:28] Speaker 02:
let's just say by hypothesis, even giving you the benefit of the doubt on what an order to show cause necessarily entails.

[00:07:35] Speaker 02:
My mistake, I phrased it incorrectly, I wanted briefing.

[00:07:38] Speaker 02:
Then you had a second argument as to why good cause had to be found, which is that Swanson came down.

[00:07:42] Speaker 02:
Yes.

[00:07:43] Speaker 02:
Now, so then it all turns on that.

[00:07:46] Speaker 02:
Because if it's not true that a district court would not necessarily abuse its discretion by declining the opportunity to file additional factual material in response to an intervening decision,

[00:07:57] Speaker 02:
And at that point, we're back to having made a mistake in terminology.

[00:08:02] Speaker 02:
So you have to win on the notion that Swanson necessarily gave you good cause, and any court would abuse its discretion to decline the opportunity to file additional factual material in response to an interview.

[00:08:14] Speaker 06:
Well, you're sort of back to that, but with the caveat that the district court actually never addressed the question of good cause.

[00:08:20] Speaker 06:
There was a conclusory statement that says you didn't show good cause, but there's no explanation of why we didn't show good cause.

[00:08:27] Speaker 06:
So you really can't discern the district court's logic

[00:08:32] Speaker 06:
So what is the good cause here, presented by Swanson?

[00:08:37] Speaker 05:
As I read Swanson, it's that your affidavits were inadequate, right, in Swanson.

[00:08:45] Speaker 05:
And the suggestion is they're inadequate in this case of summary judgment.

[00:08:48] Speaker 05:
So is that a good cause to take another bite at the apple?

[00:08:54] Speaker 06:
Judges apply the good cost.

[00:08:57] Speaker 06:
The principal thing they look at most commonly is, is there any prejudice to the defendant of filing something new for the record?

[00:09:08] Speaker 06:
The government has never claimed there was any pretentious to them from the new declarations.

[00:09:13] Speaker 06:
I mean, it's kind of a gotcha game here.

[00:09:16] Speaker 06:
I'm sure you can perceive that, that we have the information, we submitted it, and the government is saying, well, it's too late.

[00:09:25] Speaker 06:
You didn't have a good time.

[00:09:26] Speaker 02:
Actually, I'm not quite sure.

[00:09:28] Speaker 02:
Maybe I'm missing something.

[00:09:29] Speaker 02:
I'm not quite sure I'm perceiving the gotcha nature of it.

[00:09:33] Speaker 02:
If the district court never had to give you an opportunity to file additional factual material in the first place, the fact that the district court issues something that is construed to give you that opportunity doesn't necessarily create an irrevocable entitlement to a windfall.

[00:09:49] Speaker 06:
Now, I'm accepting the premise of your question.

[00:09:52] Speaker 06:
I'm talking about Swanson as the basis for the good God.

[00:09:58] Speaker 03:
Your theory, I think, is Swanson's the gotcha because Swanson changed the law from mountain states.

[00:10:03] Speaker 02:
Yeah, and I mean in Swanson... Which would equally be true in Swanson itself.

[00:10:07] Speaker 02:
So it was unfair in Swanson itself, but apparently that was enough.

[00:10:10] Speaker 06:
Well, those are my private conversations that I'm not going to have here, obviously.

[00:10:15] Speaker 06:
But in this case, we had an opportunity within the litigation to explain why we had standing in a way that we currently failed to in the Swanson case.

[00:10:30] Speaker 06:
So I mean, why isn't that good cause?

[00:10:34] Speaker 06:
That's a good cause.

[00:10:34] Speaker 06:
There's no prejudice.

[00:10:36] Speaker 03:
And this is a helpful question, but even the government obviously thought you had standing.

[00:10:41] Speaker 06:
Well, the government thought we had standing because they didn't challenge standing.

[00:10:44] Speaker 03:
Exactly.

[00:10:45] Speaker 03:
Exactly, because they read mountain states to show, even though they challenged the declarations in Swanson based on mountain states, they did not challenge the declarations in this case based on mountain states, because the declaration in this case is so much more substantial, the original ones.

[00:11:01] Speaker 03:
are so much more substantial.

[00:11:03] Speaker 03:
Presumably, I'm going to ask them about that.

[00:11:05] Speaker 06:
Yeah, you'd have to ask them why they didn't, but certainly it's true that they didn't.

[00:11:09] Speaker 06:
And when we challenged the 2008 critical habitat in this court and the government did not challenge our standing in that case.

[00:11:16] Speaker 06:
So they have a long history of not challenging standing on critical habitat challenges.

[00:11:21] Speaker 06:
until the Swanson case came along.

[00:11:23] Speaker 06:
So obviously, they thought there's something about the Swanson case that changes things.

[00:11:29] Speaker 06:
All right?

[00:11:30] Speaker 06:
Fine.

[00:11:30] Speaker 06:
So they changed their position.

[00:11:32] Speaker 06:
And I mean, this is a little bit of a gotcha.

[00:11:35] Speaker 06:
Maybe not a little bit, but it's a gotcha too.

[00:11:38] Speaker 06:
Because of course, I know the party can raise jurisdiction at any time.

[00:11:43] Speaker 06:
But if you're silent, you don't challenge it.

[00:11:47] Speaker 06:
You wait until the briefing is over and then say, oh, by the way, you don't have jurisdiction.

[00:11:51] Speaker 06:
Well, then you lose the chance to respond in the summary judgment briefing and to supplement the record at a time when you have the record.

[00:12:02] Speaker 02:
So if this case was already up on appeal at the time that Swanson came down, would we have been obligated to remand to give you a chance to supplement the factual record because Swanson comes along as supposedly a brand new law?

[00:12:12] Speaker 06:
I'm not going to say you'd be obligated, but I think we would have the right to ask you to do that.

[00:12:18] Speaker 02:
Of course, we definitely have the right to ask, and the question would be, would we have the right to say no?

[00:12:23] Speaker 02:
And it sounds like any time a decision comes along that a party would like to have an opportunity to address the factual material, that necessarily gives rise to good cause.

[00:12:35] Speaker 06:
I don't know that it necessarily gives rise to good cause, but in this case, the government thought that the Swanson case changed the landscape and they reversed themselves on our standing.

[00:12:47] Speaker 06:
So why isn't it fair that we have an opportunity to respond to the government's new position by presenting new information to answer their belated but legal

[00:13:01] Speaker 02:
I think there's no doubt that you should have an opportunity to address the government's legal arguments.

[00:13:09] Speaker 02:
I think the question is whether you necessarily have an entitlement to submit additional factual material when summary judgment had already been handed down.

[00:13:18] Speaker 06:
Let me talk about the wildfire standing issue because that is presented in the original three declarations in the declaration from Mississippi County.

[00:13:40] Speaker 06:
The first thing is that the district court

[00:13:45] Speaker 06:
I'm not clear what standard does this part apply, but the proper standard for standing for adjacent landowners is the so-called geographical nexus standard, which only requires that the neighbor in the suit show that there is a demonstrable risk of injury or a demonstrable increase in the risk of injury.

[00:14:11] Speaker 06:
In this instance, the demonstration of

[00:14:15] Speaker 06:
The risk of injury is not only in the record from the fires that occurred and damaged property of two of the companies involved in the case, but we have Congress having enacted a statute, the Healthy Forest Restoration Act in 2003,

[00:14:32] Speaker 06:
We actually, this year, have President Obama signing an executive order recognizing the destructive force of wildfire on adjacent property.

[00:14:41] Speaker 06:
We have the Ninth Circuit back in 1994 recognizing demonstrable risk of wildfire.

[00:14:49] Speaker 06:
And exactly this situation is indistinguishable.

[00:14:52] Speaker 06:
So there is a demonstrable risk.

[00:14:55] Speaker 06:
for sure, of wildfires spreading to adjacent property, and taking three million acres.

[00:15:02] Speaker 05:
Mr. President, unless my colleagues have further questions, we'll stop you there.

[00:15:05] Speaker 05:
We'll give you some time back on rebuttal.

[00:15:07] Speaker 05:
We'll hear from the governor.

[00:15:08] Speaker 05:
I'm sorry, I'll hear from the interviewee now.

[00:15:10] Speaker 05:
Excuse me.

[00:15:14] Speaker 01:
May it please the court.

[00:15:16] Speaker 01:
Good morning.

[00:15:16] Speaker 01:
I'm Susan Drummond.

[00:15:17] Speaker 01:
I represent the counties of Skamania, Lewis, and Klickitat in Washington State.

[00:15:22] Speaker 01:
The counties join carpenters in requesting that this cart find that both have standing.

[00:15:29] Speaker 01:
Roughly one-third of Washington's nearly three million acres of spotted owl critical habitat is located within the counties, with nearly 20% of Lewis County designated and nearly half of Skamania County designated.

[00:15:46] Speaker 01:
The counties challenged

[00:15:47] Speaker 01:
the rule, because the rule did not address the true cause of spotted owl decline.

[00:15:53] Speaker 01:
Forests are not the limiting factor, yet the rule focuses on that rather than the primary culprit, the barred owl.

[00:16:02] Speaker 01:
U.S.

[00:16:02] Speaker 01:
Fish and Wildlife use computer models to manipulate barred owl presence to create habitat which exists in cyberspace.

[00:16:09] Speaker 01:
but it doesn't exist on the ground.

[00:16:12] Speaker 01:
As a result, over 800,000 acres of spotted owl habitat was designated within the three counties based upon a fiction.

[00:16:23] Speaker 03:
And the harm to you is?

[00:16:25] Speaker 01:
There are a wide range of injuries that are affecting the counties.

[00:16:31] Speaker 01:
They include economic interests.

[00:16:34] Speaker 01:
They include their regulatory interests.

[00:16:37] Speaker 01:
The counties, for example.

[00:16:38] Speaker 03:
You spell out the economic interests?

[00:16:41] Speaker 01:
Well, there's a long background with regard to the spotted owl in terms of nearly three decades of trying to manage that.

[00:16:47] Speaker 01:
that species, the rule adds on to that.

[00:16:49] Speaker 01:
So the counties are particularly vulnerable to begin with, but the rule as a practical matter is a threat to the well-being, the economic well-being, to the county's tax base, to their employment base, and it adds on to the harms that they are already suffering economically, because particularly with regard to Eskimea County, where you have nearly half the land base, or over half a million acres designated within the county,

[00:17:17] Speaker 01:
It has an enormous impact on the logging that occurs within the counties, and also there were arguments earlier from Mr. Rutzick on the wildfire issue.

[00:17:25] Speaker 01:
The counties have a very strong environmental interest in protecting their forest lands as well as the Spotted Isle.

[00:17:31] Speaker 01:
They're required under the State's Growth Management Act to adopt regulations to protect both their forests and the Spotted Isle.

[00:17:37] Speaker 01:
They have both of those in place.

[00:17:38] Speaker 01:
And so the counties have environmental interest as well as economic in their forests and in managing those forests.

[00:17:44] Speaker 01:
With the commingling of the lands and the county's adjacent lands that are adjacent to those forests, there are particular issues for both the counties and private landowners.

[00:17:52] Speaker 01:
And our declarations address the amount of acreage that is adjacent to those forest lands.

[00:17:58] Speaker 01:
And that presents a real issue for the counties.

[00:18:00] Speaker 01:
And there are a particularly vulnerable number of facts addressed in the declarations regarding wildfire risk within southwest Washington.

[00:18:10] Speaker 01:
And also with regard to the spotted owl, the counties in adopting their regulations, they're required to use best available science as well.

[00:18:18] Speaker 01:
So the rule is an impediment to recovering both the spotted owl and recovering the forest.

[00:18:24] Speaker 01:
I see that I'm, oh I've got 10 seconds left.

[00:18:26] Speaker 05:
No, no, you don't.

[00:18:27] Speaker 01:
So.

[00:18:28] Speaker 01:
I would briefly want to point the court to funds.

[00:18:31] Speaker 05:
Your time actually is up.

[00:18:33] Speaker 01:
Oh it is, I apologize.

[00:18:34] Speaker 05:
Thank you very much.

[00:18:35] Speaker 01:
Thank you, Your Honor.

[00:18:45] Speaker 04:
May it please the Court, my name is Michael Gray.

[00:18:47] Speaker 04:
I'm here on behalf of the Fish and Wildlife Service.

[00:18:50] Speaker 04:
The problem with the original declarations and the new declarations is that they're all conclusory in nature when they come to a ledging.

[00:19:00] Speaker 04:
Why don't you challenge them?

[00:19:04] Speaker 04:
The trial attorneys have to make judgments in each case about what they're going to challenge, what they're not, based on their judgment as to what's likely to be the most successful here.

[00:19:13] Speaker 04:
And they made the judgment that this would not be successful.

[00:19:19] Speaker 04:
They made the judgment that there were better grounds on which to

[00:19:22] Speaker 04:
to defend the suit at that time.

[00:19:24] Speaker 03:
Really, they threw away a jurisdictional... Well, of course, the court was still under an obligation to consider its own jurisdiction.

[00:19:32] Speaker 03:
I understand that.

[00:19:32] Speaker 03:
They threw away their own opportunity to advance a ground that would have...

[00:19:36] Speaker 04:
I wouldn't say that they threw it away.

[00:19:38] Speaker 04:
They could raise it later, as they did.

[00:19:42] Speaker 04:
And a case like Swanson Group can have a clarifying effect on how you see the facts in your case, even if it doesn't change the law.

[00:19:50] Speaker 03:
Let's talk about Mountain States, because Mountain States, the declaration is bare bones.

[00:19:58] Speaker 03:
It's right here.

[00:19:58] Speaker 03:
It's bare bones.

[00:19:59] Speaker 03:
There's one paragraph.

[00:20:01] Speaker 03:
that's really relevant.

[00:20:04] Speaker 03:
And it's got virtually nothing in it.

[00:20:05] Speaker 03:
The only really distinction that Swanson seizes on is that it specifies that there was going to be a temporary closing of the mall and a permanent layoff of the 25 workers.

[00:20:16] Speaker 03:
And Swanson seizes on that as the distinction.

[00:20:21] Speaker 03:
Now, I think what happened is based on mountain states, you all did challenge in the district court the Swanson declarations.

[00:20:30] Speaker 03:
Yes.

[00:20:31] Speaker 03:
because it didn't have that kind of detail.

[00:20:33] Speaker 03:
You did not challenge the declarations in this case, the Parton Declaration in particular, because the Parton Declaration, if you stack it up next to this Mountain States Declaration, it's not even close.

[00:20:43] Speaker 03:
It's got all sorts of detail about specific harms to, and it does specify, and this is the key in distinguishing Swanson, it does specify particular layoffs at rough and ready.

[00:20:59] Speaker 03:
That rough and ready was going to have to close, and it specifies the number of employees affected, right, in paragraph 10.

[00:21:06] Speaker 03:
So that's why

[00:21:09] Speaker 03:
I mean, you can tell me if this is wrong.

[00:21:10] Speaker 03:
That's why your attorneys, who I think are very good, said, we don't have a case to raise a standing challenge under mountain states.

[00:21:21] Speaker 04:
I don't want to speculate about exactly what those attorneys thought at the time they did it, but let me show you why this is different from mountain states and why these declarations are not good enough, even under mountain states.

[00:21:35] Speaker 04:
Mountain states, of course, involved a particular project.

[00:21:38] Speaker 04:
There was a sale where the forest had to choose between alternatives.

[00:21:44] Speaker 04:
One alternative involved cutting more timber.

[00:21:48] Speaker 04:
One alternative involved cutting less timber.

[00:21:51] Speaker 04:
And they sued and they said, we need the alternative with more timber.

[00:21:55] Speaker 04:
Here, the problem with these declarations is that they are conclusory when they allege that the critical habitat designation will inevitably result in fewer timber sales.

[00:22:10] Speaker 03:
And where did the Mountain States declaration say something like that?

[00:22:13] Speaker 04:
Well, they were dealing with a particular project.

[00:22:15] Speaker 04:
They said,

[00:22:16] Speaker 04:
What the court said in Mountain States is if you go with the alternative that was selected, there are fewer trees cut.

[00:22:25] Speaker 04:
If you go with the alternative that they are suing to enforce, there are more trees cut.

[00:22:30] Speaker 04:
So it was because it was a specific project, the declarations there were good enough.

[00:22:38] Speaker 04:
It's true that they have information about the number of employees, but the impacts that they really all relate to, they say it started in 1990 when the owl was listed as threatened and there's been a reduction over time, and then only at the very end do they say the critical habitat designation will lead to further reduction.

[00:22:56] Speaker 04:
And that's not good enough, because in the final rule, the critical habitat rule, it says right up front, this rule does not take any action or prescribe any policy or plan or program for active timber management, active forest management.

[00:23:15] Speaker 04:
It says we designate it's all federal land.

[00:23:18] Speaker 04:
There's no private land.

[00:23:19] Speaker 04:
There's no state land.

[00:23:21] Speaker 03:
Will the critical habitat designation

[00:23:25] Speaker 03:
eliminate any sources of supply for these timber manufacturers.

[00:23:32] Speaker 03:
They have not alleged that it will.

[00:23:34] Speaker 03:
Can you just answer my question?

[00:23:36] Speaker 04:
No, I do not believe that it will, because what the critical habitat designation does, I mean, it says it right in there.

[00:23:43] Speaker 04:
If you look at the final rule, it says they did what's called the final economic analysis, and it's described in the rule.

[00:23:51] Speaker 02:
Does it also get your answer no, or is it that it's not necessary?

[00:23:55] Speaker 02:
In other words,

[00:23:56] Speaker 02:
Do you know for sure that it never will?

[00:23:59] Speaker 02:
Or is your response more that we don't know yet?

[00:24:03] Speaker 02:
And that's the problem.

[00:24:04] Speaker 02:
Right.

[00:24:04] Speaker 04:
There may be, I mean, I guess it is conceivable that there would be a particular project where consultation would result in the dropping of units, whatever, but the rule itself doesn't do that.

[00:24:16] Speaker 05:
Conceivable?

[00:24:17] Speaker 05:
That's a bit of an understatement, isn't it?

[00:24:21] Speaker 05:
Not to try a witticism here, are we missing the forest for the trees here?

[00:24:26] Speaker 05:
Is there any serious doubt that this listing has had a significant economic impact?

[00:24:33] Speaker 05:
And is there any reason to think it won't have a further impact?

[00:24:38] Speaker 04:
The listing of the species, I think there probably is not much doubt that that's had an impact.

[00:24:43] Speaker 04:
But the critical habitat designation, which is all this issue here, they did a final economic analysis that's in the record.

[00:24:51] Speaker 04:
That does indicate some effect.

[00:24:53] Speaker 04:
What it says is that we've modeled three scenarios.

[00:24:56] Speaker 04:
One is no effect.

[00:24:57] Speaker 04:
Everything will stay just as it is.

[00:24:59] Speaker 04:
One is there may be some detrimental effect.

[00:25:01] Speaker 04:
And one is the resource agencies may actually increase, because one of the things you want to do when you're managing habitat is reduce the risk of fire, and so they may actually increase the number of thinning projects to reduce.

[00:25:12] Speaker 04:
And it says we can't say for certain which one of those is true, because that

[00:25:18] Speaker 04:
of the land management agencies here.

[00:25:22] Speaker 04:
And of course, that's the critical point here.

[00:25:24] Speaker 03:
These are not... What does critical habitat designation do?

[00:25:29] Speaker 03:
required as distinct from listing the species.

[00:25:32] Speaker 03:
Just explain it to me what it does.

[00:25:34] Speaker 04:
Yeah, if there were an area that is designated critical habitat and is unoccupied by the species, for example, which is where you receive the most impact from the designation itself, and there was a project to go forward, then they would have to consult with the Fish and Wildlife Service on whether

[00:25:52] Speaker 04:
that project would destroy or adversely modify the critical habitat.

[00:25:56] Speaker 04:
And what the courts have said here, we're talking about nine million, nine and a half million acres.

[00:26:01] Speaker 02:
Can the Fish and Wildlife Service put a stop on a project?

[00:26:05] Speaker 04:
I don't think the Fish and Wildlife Service can put a stop on a project necessarily.

[00:26:10] Speaker 04:
They will do a biological opinion that would say, we think this is going to result in adverse modification of the habitat, but it's up to the land management agencies to comply with the Endangered Species Act.

[00:26:24] Speaker 04:
And so the way this would work is

[00:26:27] Speaker 04:
In an area like this, you're unlikely to see much in the way of adverse modification, because the area of critical habitat is so large, and because you need to have active forest management in order to reduce the risk of wildfire and disease to keep the habitat healthy for the owl.

[00:26:47] Speaker 02:
So is your view that your distinction of mountain states is based on the proposition that in that situation, there was a specific project at hand?

[00:26:55] Speaker 02:
So is your view that when a critical habitat designation is made, it's not to the exclusion of the possibility of standing when a particular project comes up and BLM takes a decision based on what sounds like a recommendation from the service about the spotter valve.

[00:27:11] Speaker 02:
Exactly.

[00:27:11] Speaker 03:
It's just too early now.

[00:27:13] Speaker 03:
That's exactly right.

[00:27:14] Speaker 03:
They're conceding their standing when they challenge a specific project.

[00:27:18] Speaker 04:
they still have to meet all the elements of the standing doctrine, and they're going to have to plead... You're promising something that you're going to resist in the next case.

[00:27:30] Speaker 03:
I'm pretty confident.

[00:27:31] Speaker 04:
They'll have to... I do think that it would be... that they would be able to plead a case in which they would have standing where, you know, if you have a company that, say,

[00:27:45] Speaker 04:
is going to bid on a sale.

[00:27:47] Speaker 04:
The sale is in critical habitat.

[00:27:50] Speaker 04:
They consult with the agency and the agency says we're going to drop, they ultimately say we're going to drop these four units and reduce the total amount of timber because this would be better for the species and the land management agency goes with that and they can say because of that,

[00:28:12] Speaker 04:
We're going to make less money, and our employees won't be hurting.

[00:28:16] Speaker 04:
But I think they're going to have to make all of those links.

[00:28:19] Speaker 03:
But aren't they saying that writ large?

[00:28:21] Speaker 03:
There are a number of places that are the supply.

[00:28:24] Speaker 03:
So I'm going to start with Mountain State says, government acts constricting a firm's supply of its main raw material clearly inflict the constitutionally necessary injury.

[00:28:35] Speaker 03:
Here, we have with five different companies

[00:28:40] Speaker 03:
them all alleging these areas within the designation are the places where we get the raw material.

[00:28:49] Speaker 03:
And it's just our standing law.

[00:28:52] Speaker 03:
So I'm sympathetic to you in one key respect.

[00:28:55] Speaker 03:
Our standing law is a mess.

[00:28:57] Speaker 03:
And I've said that before.

[00:28:58] Speaker 03:
This is common sense, which is if you're a company and you're getting your raw material from a place and the government says you can no longer get the raw material from that place, that's got to be an injury.

[00:29:08] Speaker 03:
Now, it may be a lawful decision.

[00:29:10] Speaker 04:
I'm with you all the way on that except for the proposition that here the government said you can no longer get your timber from that place.

[00:29:19] Speaker 04:
That's what's missing.

[00:29:21] Speaker 04:
That's what's missing in this case is they just say, it's inevitable.

[00:29:24] Speaker 04:
You designate a critical habitat.

[00:29:25] Speaker 04:
We're going to get less.

[00:29:26] Speaker 04:
But the economic analysis said that that wasn't true.

[00:29:29] Speaker 03:
This is where common sense, as you're probably aware, I've said we shouldn't check our common sense in standing cases.

[00:29:34] Speaker 03:
You look at the hollowed out communities all over the Northwest.

[00:29:39] Speaker 03:
the rural communities that are described in the declaration.

[00:29:42] Speaker 03:
Because people lost their jobs because of these designate.

[00:29:45] Speaker 03:
And that may be entirely lawful and proper.

[00:29:47] Speaker 03:
But the idea that people haven't been injured?

[00:29:50] Speaker 04:
I think common sense would have said that the plaintiffs in the Clapper case in the Supreme Court were going to talk to some of their clients and have the communications intercepted.

[00:30:01] Speaker 04:
But the court said it's too speculative.

[00:30:03] Speaker 04:
It doesn't matter that it's hard to prove.

[00:30:05] Speaker 03:
But it's not certainly impending.

[00:30:06] Speaker 03:
You quote that, and there's the key footnote in Clapper, which talks about substantial likelihood.

[00:30:12] Speaker 03:
So it's a probabilistic, and this is key.

[00:30:16] Speaker 03:
It's not a certainty.

[00:30:17] Speaker 03:
It's a probabilistic evaluation.

[00:30:20] Speaker 03:
And how do we do this is another question.

[00:30:22] Speaker 03:
But anyway, the probabilistic evaluation, that's where you're at.

[00:30:27] Speaker 03:
When you take away someone's supply,

[00:30:29] Speaker 03:
And you see all the hollowed out communities in the rural areas of these northwest states.

[00:30:35] Speaker 04:
And I might agree with you at the motion to dismiss stage in this case, because the general allegation is presumed to include the specific facts.

[00:30:43] Speaker 04:
But when you get to summary judgment, you have to plead it.

[00:30:47] Speaker 04:
I mean, the case, it can't be more clear at this point.

[00:30:50] Speaker 04:
If you're a plaintiff in 2016, you have to know.

[00:30:54] Speaker 03:
It's really not a cleaning thing, though, that I think you're describing.

[00:30:57] Speaker 03:
What you're describing is that there's no way to plead it.

[00:30:59] Speaker 04:
No, I'm not saying there's no, I'm saying they need to have a particular project that has a particular effect and the only ones they identify here post date the complaint.

[00:31:11] Speaker 04:
They don't post date the amended complaint.

[00:31:16] Speaker 04:
There is one

[00:31:18] Speaker 04:
Don't we look at the amended?

[00:31:20] Speaker 04:
It's an open question, I think.

[00:31:23] Speaker 03:
You don't look at the amended complaint?

[00:31:26] Speaker 04:
This Court has said, you know, the phrase this Court has used is that you're looking at when the complaint was first filed.

[00:31:33] Speaker 04:
The Supreme Court and this Court haven't resolved yet.

[00:31:35] Speaker 04:
I think it would have been much clearer.

[00:31:37] Speaker 03:
Can you explain a rationale by which we would not look at the amended complaint for purposes of what you're describing?

[00:31:46] Speaker 04:
If the idea is to keep plaintiffs from bringing speculative claims before their right, then you would want to look.

[00:31:57] Speaker 04:
Otherwise, you bring a suit, you file your complaint, and then you say, well, we'll figure out our standing later, and we'll just amend.

[00:32:04] Speaker 04:
I mean, that's the best rationale.

[00:32:06] Speaker 04:
It also, I think, had they sought to supplement here with other facts.

[00:32:10] Speaker 02:
It feels like the question is whether you can amend a complaint.

[00:32:12] Speaker 02:
Once you've amended a complaint, it seems difficult to say that.

[00:32:15] Speaker 02:
That's not the relevant instrument.

[00:32:18] Speaker 02:
Can I just ask you this question, which is that, you know, whatever we might think about the way standing should be done in the abstract, we have to deal with Swanson.

[00:32:26] Speaker 02:
And on Swanson... And Mountain States.

[00:32:29] Speaker 02:
And Mountain States, definitely.

[00:32:30] Speaker 02:
And Swanson does deal with Mountain States, of course, so we're dealing with the corpus of that.

[00:32:32] Speaker 02:
Yeah, absolutely.

[00:32:34] Speaker 02:
So Swanson has, and on the part where it talks about Mountain States is on the injury prompt.

[00:32:40] Speaker 02:
Swanson also talks about causation and accessibility separately.

[00:32:43] Speaker 02:
And the focus of your argument so far has been, I think, on injury.

[00:32:47] Speaker 02:
And as to causation and aggressibility, which were both found lacking in Swanson for better or for worse, it just, one thing that seems different about this case is that here, at least in Swanson, the entity that was being hailed into court was the entity that actually was restricting the timber sales because it was the BLM.

[00:33:08] Speaker 02:
Here you're one step removed from that.

[00:33:09] Speaker 02:
Now I think there's a lot of common sense to the proposition that this is having a practical effect

[00:33:14] Speaker 02:
you know, we can discern that.

[00:33:16] Speaker 02:
I'm just trying to marry it with Swanson in a situation which, in certain cases of that case, the court found no causation or redressability, even though, apart from injury, even though we were talking about the ability that.

[00:33:29] Speaker 04:
There is a significant problem here with relying on the actions of the third parties.

[00:33:34] Speaker 04:
And, you know, I think, of course, if you remove the critical habitat designation, then

[00:33:40] Speaker 04:
you know, there's no guarantee at that point that, I mean, most of their declarations say we want an increase from the current level, and there's no guarantee that removing the critical habitat designation would lead the BLM or Forest Service to increase the baseline timber or whatever they've already done.

[00:33:57] Speaker 03:
You just said no guarantee, and I understand why you said it, but that's not the standard.

[00:34:02] Speaker 03:
The standard's a probabilistic standard.

[00:34:06] Speaker 04:
Well, but they have to show, it's a probabilistic standard, but they have to show some evidence.

[00:34:11] Speaker 04:
The evidence is there.

[00:34:13] Speaker 04:
They're not, I mean, there's a third party, and the cases are replete with saying that if you're relying on the actions of a third party, especially an agency that has wide discretion, then it's not, that breaks that chain.

[00:34:29] Speaker 03:
Two things about causation.

[00:34:31] Speaker 03:
On causation, Swanson winked back

[00:34:34] Speaker 03:
to the injury.

[00:34:35] Speaker 03:
Without information about Ruffin Ready's past injury, Filippi's declaration does not show that the economic losses fairly can be traced.

[00:34:43] Speaker 03:
So it links back to the failure, and this is how it distinguishes mountain states.

[00:34:50] Speaker 03:
the failure to talk about specific numbers, because mountain states, again with this declaration, had specific numbers, and here we have specific numbers with rough and ready.

[00:34:59] Speaker 04:
Again, but the specific numbers go to injuries they suffered not a result of the critical habitat designation.

[00:35:07] Speaker 04:
And I think that's the key point here, is that the specific numbers they provide all go to injuries they suffered for some other reason, and they say, we think the critical habitat designation is going to contribute further to it.

[00:35:19] Speaker 04:
But there's no showing as to why that is so, why the final economic analysis said it could be any one of three results.

[00:35:27] Speaker 04:
It may turn out that the land management agencies increase.

[00:35:30] Speaker 03:
Well, can I ask you about that?

[00:35:31] Speaker 03:
Because I'm looking at page 72028, and there's a paragraph that says, we find that incremental economic impacts to USFS timber harvest are relatively more likely in unoccupied, major clans, or approximately 1.1

[00:35:48] Speaker 03:
million acres of 2.6 million.

[00:35:51] Speaker 04:
If you continue, it says incremental impacts are more likely.

[00:35:54] Speaker 04:
And if you continue reading the full section, what it says is there's three possible outcomes.

[00:36:00] Speaker 04:
One is no impact, because they'll say the same.

[00:36:03] Speaker 04:
One is that there will be some negative impacts.

[00:36:05] Speaker 04:
And one is that there will be positive impacts because the land management agencies will increase timber.

[00:36:10] Speaker 04:
And then it says these agencies have discretion, and we can't say which one of those is more likely.

[00:36:16] Speaker 04:
They're here saying, well, it's going to be decreased.

[00:36:19] Speaker 04:
But they don't prove it.

[00:36:20] Speaker 04:
They don't have any specific facts to prove it.

[00:36:22] Speaker 03:
But the rule itself says, maybe I'm misreading the sentence, we estimate that incremental, this is a different sentence, we estimate that incremental economic impacts due to the critical habitat designation would be relatively more likely to occur in unoccupied areas.

[00:36:37] Speaker 04:
Yeah, but the difference is, it's saying incremental impacts, but it doesn't say whether those impacts are positive or negative in that sentence.

[00:36:43] Speaker 04:
And if you read the full thing, it says there's a range of outcomes.

[00:36:46] Speaker 04:
We think there will be some impacts, but we don't know whether they'll be positive or negative.

[00:36:50] Speaker 04:
They've just asserted it'll be negative, but the final economic analysis says that the- How can it be positive for these companies?

[00:36:58] Speaker 04:
So for example, if the Forest Service

[00:37:00] Speaker 04:
were to conclude that in order to protect the critical habitat, it's necessary for the critical habitat to go in and do more thinning where they haven't done it before.

[00:37:10] Speaker 04:
That would increase the number of sales and make more timber available.

[00:37:14] Speaker 04:
And the economic analysis goes through that and says this is one possible outcome.

[00:37:19] Speaker 04:
And it actually quantifies it.

[00:37:25] Speaker 04:
I think it was on the range of $2 million or something, potential positive outcome.

[00:37:30] Speaker 04:
And then it says we don't know because it depends on the discretion of the land management agencies.

[00:37:35] Speaker 04:
We don't know if that's going to happen or if it's going to be a negative impact.

[00:37:38] Speaker 04:
And they have to show something that shows there is an actual negative impact from this in that situation.

[00:37:44] Speaker 04:
I think it'd be a much different case if the final economic analysis had said,

[00:37:48] Speaker 04:
This is definitely going to be a detriment, a negative impact, but we don't care because the critical habitat's imported.

[00:37:54] Speaker 03:
One of the things I'm trying to do is, as you can tell, square mountain states in Swanson, try to figure out where the sweet spot is there.

[00:38:01] Speaker 03:
And I know you're familiar with that.

[00:38:05] Speaker 03:
In mountain states,

[00:38:10] Speaker 03:
It's the court said, the plaintiffs may not have any particular right to federal timber contracts, but no such right is required any more than a right to view crocodiles for the plaintiffs in Lujan.

[00:38:22] Speaker 04:
Yeah, we have not challenged the notion that, I mean, I think it even goes even further.

[00:38:28] Speaker 04:
The courts have said that the right to bid on a benefit can be an injury.

[00:38:35] Speaker 04:
I don't think that's the problem.

[00:38:37] Speaker 04:
The problem is that they've not shown any specific evidence or any particular project where they've been injured.

[00:38:46] Speaker 03:
How about this?

[00:38:47] Speaker 03:
And here's another sentence, the last one I'll read from Mount States just to get your reaction, because that's helpful, thank you.

[00:38:52] Speaker 03:
Given the company's historic dependence on the upper yak for its supply, together with the disruptive effect of the past shutdown,

[00:39:03] Speaker 03:
Logging cutbacks in the Upper Yak clearly inflict injury on the firm's economic well-being, which in order reducing the cutbacks would redress.

[00:39:11] Speaker 04:
And again, the key there is logging cutbacks.

[00:39:16] Speaker 04:
And what's missing from these declarations is any specific evidence that there will be a reduction in logging.

[00:39:23] Speaker 04:
That's what's missing.

[00:39:24] Speaker 04:
That's the problem.

[00:39:24] Speaker 04:
And you really think there's doubt about that?

[00:39:28] Speaker 04:
The final economic analysis, which is in the record and conducted, you know, a robust economic analysis conducted for exactly this purpose, says there's doubt.

[00:39:38] Speaker 04:
So yeah, I'm comfortable saying that there's some doubt.

[00:39:40] Speaker 04:
People are just seeing ghosts.

[00:39:42] Speaker 04:
And if there's not doubt, if there's not doubt and there's a particular project, then they can bring a suit at that time and plead it in the way that I've talked about.

[00:39:52] Speaker 03:
So it's more a ripeness thing.

[00:39:54] Speaker 03:
I mean, I realize standing and ripeness overlap, but it's not that they... It's that the allegations here aren't quite concrete enough yet.

[00:40:02] Speaker 04:
There's not the impending imminent injury at this point.

[00:40:05] Speaker 03:
Let me just explore this, because I'm sure we'll be back here in two years.

[00:40:08] Speaker 03:
But if they have a specific place that they say is no longer available and we would have gotten timber from there, gotten raw materials from there,

[00:40:22] Speaker 04:
Is that good enough?

[00:40:27] Speaker 04:
I think that if they say, we're a company that operates in this place, this place has been removed completely, and it was removed completely because of the critical habitat designation, and that's going to cause us economic injury.

[00:40:41] Speaker 04:
I think that's probably good enough.

[00:40:43] Speaker 04:
But they haven't done it.

[00:40:44] Speaker 05:
So you're saying it's not just a pleading problem now.

[00:40:46] Speaker 05:
You're saying there's actually no way under the facts that we have it now that they could plead in such a way to have standing, because no decisions have been made?

[00:40:55] Speaker 05:
that are going to harm them economically?

[00:40:57] Speaker 04:
Under these facts, that's right.

[00:40:59] Speaker 04:
Again, I don't think it would be a different case if the economic analysis did say, or you had some actual specific facts that said this will happen.

[00:41:09] Speaker 04:
So for example, the decoration that you referred to earlier, I think it's

[00:41:15] Speaker 04:
the Sanders Declaration, which talks about a couple of specific projects.

[00:41:19] Speaker 04:
I mean, that's getting close.

[00:41:21] Speaker 04:
They're right, versus post-8, except for the one on the amended complaint.

[00:41:26] Speaker 04:
But what's... Well, the one's all I need.

[00:41:29] Speaker 04:
Well, if in fact you do look at the amended complaint, which, you know, hasn't been

[00:41:35] Speaker 04:
uh... settled and but even as to even as to that one i'm not sure that the allegations and so that particular project are as concrete as some of the others in there but what you know if they come in and and said you know these are projects where we're losing timber uh... and we expect

[00:41:52] Speaker 04:
that will continue with other projects.

[00:41:54] Speaker 04:
That's much closer, but the other problem, of course, with Sanders is you have the Rule 6 issue where that was not properly in front of the court.

[00:42:02] Speaker 03:
If it's just a pleading thing, I think I disagree with you, because the pleadings, the affidavits are replete with what you just said.

[00:42:11] Speaker 03:
I don't think that that's how I view the affidavit.

[00:42:18] Speaker 04:
Well, I think your point is that... That Sanders affidavit is the best one that they have, but of course that was excluded by the district court because it wasn't timely filed.

[00:42:26] Speaker 03:
Well, I guess we... Can I ask a question or two about that?

[00:42:32] Speaker 03:
So on the good cause, why isn't it

[00:42:37] Speaker 03:
good cause that a new decision came down from this court that changed the law.

[00:42:43] Speaker 04:
Well, I think we would disagree that it changed the law.

[00:42:45] Speaker 04:
As I said at the beginning of the Senate, it clarified how you look at the facts of these things.

[00:42:51] Speaker 03:
The reason I challenge you on that and going back to is obviously it changed the law from your guy's perspective.

[00:42:58] Speaker 03:
Well, I don't think that that's... I think you may be... You guys are not hesitant to impose standing objections, as you're well aware, and you didn't in this case.

[00:43:08] Speaker 03:
It's the first item on the checklist, isn't it?

[00:43:10] Speaker 02:
Yes.

[00:43:10] Speaker 02:
Well, at least in the last case, you don't always impose sovereign immunity objections.

[00:43:15] Speaker 04:
Now you're barely aware, kind of.

[00:43:18] Speaker 04:
Things sometimes get missed or not fully appreciated.

[00:43:22] Speaker 04:
How could it?

[00:43:23] Speaker 03:
I understand you're in a tough position here, but let me just play out my position and you can shake your head no.

[00:43:33] Speaker 03:
You say you're making decisions.

[00:43:36] Speaker 03:
It's the same basic kind of case about the same basic area for the same basic issue with at least one, I checked, of the same lawyers for you guys involved.

[00:43:48] Speaker 03:
And yet in one case you don't, you raise the standing pretty aggressively, Swanson, I think because it lacked the detail that even mountain state spares it was had.

[00:43:58] Speaker 03:
In the other case, you've got the part in that question.

[00:44:00] Speaker 04:
The sequence of events may be also important here in...

[00:44:04] Speaker 04:
understanding how you can come to that judgment where, of course, they had lost the standing argument in the district court in Swanson and were in front of the same judge.

[00:44:15] Speaker 04:
So I don't know if you're making a judgment on how best to use your limited space in responding to a summary judgment motion that, you know,

[00:44:23] Speaker 04:
that's necessarily a place you want to go, knowing that you can... If Swanson is successful in appeal, you'll be... But I think they, I mean, the timing, the chronology, as I look at it, you all challenge standing in Swanson.

[00:44:34] Speaker 03:
Their complaint is filed later in this case, and they probably learn, to speculating, from your objections to the complaint, Swanson, so they beef up the declarations here with the pardon declaration and the other ones, which are much more robust, your lawyers,

[00:44:50] Speaker 04:
look at and say, well, that, you know, how can we... Well, we didn't win Swanson in the district court, and, you know, so... So maybe that's okay.

[00:44:57] Speaker 03:
That's a good answer.

[00:44:58] Speaker 04:
So now maybe we're not going to, you know, go up against the same judge with the same argument at this point.

[00:45:04] Speaker 03:
So... That's a fair point, but what about the good cause then?

[00:45:09] Speaker 03:
Assume it's a change as opposed to a clarification.

[00:45:13] Speaker 03:
Is that is a change?

[00:45:15] Speaker 04:
I think if what had happened here was they had come in and they had filed a motion and said, we want an extension of time on our declarations because there's been a change and we want an opportunity to address it.

[00:45:31] Speaker 04:
And if the district court had said, OK, I see that there's been a change and I'm going to allow you to address it, I do not think the United States would be here on an affirmative appeal arguing that was an abuse of discretion.

[00:45:41] Speaker 04:
But what actually happened was exactly what happened in National Wildlife Federation.

[00:45:47] Speaker 04:
They just simply attached the new declarations to what they filed without filing a motion and without seeking leave of the court.

[00:45:57] Speaker 04:
And I think it was within the court's discretion under National Wildlife Federation at that point to say, no, it's too late.

[00:46:01] Speaker 03:
Do you think it's crazy not to read the show cause order as allowing them to submit new affidavits?

[00:46:08] Speaker 04:
I'm not going to say it's crazy, but I think it was probably wrong.

[00:46:12] Speaker 04:
If, for example, an appellant in this court failed to file a brief, and the court issued a show cause order why the case shouldn't be dismissed for lack of prosecution,

[00:46:25] Speaker 04:
You wouldn't just come in and file your brief.

[00:46:27] Speaker 04:
You'd file a motion for leave to file the brief out of time.

[00:46:31] Speaker 04:
And I think this is not, you know, what the district court did was not the typical show cause process.

[00:46:36] Speaker 04:
It was, you know, the sequence of events was they had their opportunity to prove it.

[00:46:41] Speaker 04:
You know, they had the opportunity to provide declarations.

[00:46:44] Speaker 03:
We do issue show cause orders, and I'm just going on memory here for things like standing or jurisdictional issues.

[00:46:50] Speaker 03:
And we'll often get, I think, back argumentation plus affidavits.

[00:46:54] Speaker 03:
But that's kind of standard practice.

[00:46:57] Speaker 04:
Well, in this court, of course, you're not

[00:46:59] Speaker 04:
The rule six is not.

[00:47:01] Speaker 04:
Yeah, no, it's different.

[00:47:02] Speaker 04:
Rule 56 says you file affidavits in support of a motion at the time the motion is filed.

[00:47:07] Speaker 04:
And rule six says if you don't do that, you have to seek leave of the court and show your good cause.

[00:47:13] Speaker 04:
And where they don't seek leave, if nothing else, National Wildlife Federation says the district court's not obligated at that point to accept it.

[00:47:20] Speaker 04:
And this court even has a case, which I'm blanking on the name of right now, where it said if there's no motion filed, there's no discretion to exercise.

[00:47:27] Speaker 04:
And in that case, the court had let it in, let the additional documents in, and this court said, no, that's an abuse of discretion.

[00:47:34] Speaker 03:
He does the show cause order.

[00:47:36] Speaker 03:
They come in with the briefing of the submissions, including the new affidavits.

[00:47:40] Speaker 03:
You all object, and then they submit a reply that says, here's why we have good cause.

[00:47:45] Speaker 03:
And the district court says, I'm not going to consider that.

[00:47:47] Speaker 04:
Yeah, again, because of the sequence of events.

[00:47:51] Speaker 04:
It's just too late.

[00:47:52] Speaker 03:
I have some mild desire not to make the litigation process a hall of mirrors.

[00:47:58] Speaker 03:
I understand.

[00:48:00] Speaker 03:
Thank you.

[00:48:02] Speaker 03:
The message further.

[00:48:03] Speaker 05:
Mr. Rizik, we'll give you back a couple minutes.

[00:48:07] Speaker 06:
Thank you very much.

[00:48:08] Speaker 06:
I have a few points to make.

[00:48:11] Speaker 06:
The independent case, the Supreme Court said that Fish and Wildlife Service biological opinions are determinative on the action agency.

[00:48:23] Speaker 06:
So when the Fish and Wildlife Service says you shouldn't do X, they really can't do X. Would you address the point about the economic analysis, which suggests that we don't know that there will be economic harm?

[00:48:39] Speaker 06:
Well, I'm going to say two things.

[00:48:42] Speaker 06:
First, we don't need an admission from the government to establish our stance.

[00:48:48] Speaker 06:
Sure, it would be great if they said, yes, there's going to be economic injury.

[00:48:53] Speaker 06:
They didn't say that.

[00:48:54] Speaker 06:
We don't need that.

[00:48:55] Speaker 06:
We pointed to nine quotes from the record.

[00:48:58] Speaker 06:
which contain the information that says that the most cutting one, that's a bad pun, the most relevant one is they said we will not allow traditional timber cutting or timber harvest in the critical habitat.

[00:49:17] Speaker 06:
Well look, they don't mean they're going to allow more cutting.

[00:49:21] Speaker 06:
they mean they're going to allow less cutting.

[00:49:23] Speaker 06:
And they go through over and over again, you should stop doing what you were doing and go with the ecological approach.

[00:49:30] Speaker 06:
Well, that doesn't mean more cutting either.

[00:49:32] Speaker 06:
That means less cutting.

[00:49:33] Speaker 06:
Over and over again, they said that.

[00:49:36] Speaker 06:
No one ever responded to our citation of these points.

[00:49:40] Speaker 06:
The government did not in its briefs.

[00:49:42] Speaker 06:
District court did not, never addressed what was in the record.

[00:49:47] Speaker 06:
All right, next point.

[00:49:49] Speaker 06:
There is no project to challenge in the future.

[00:49:52] Speaker 06:
That is a figment of the government's imagination.

[00:49:56] Speaker 06:
What actually happens is the agency never proposes a timber sale and critical habitat because they know what's going to happen.

[00:50:07] Speaker 06:
There's nothing to challenge the project.

[00:50:10] Speaker 06:
The mythical project does not exist.

[00:50:13] Speaker 06:
That is the reality of the situation.

[00:50:16] Speaker 06:
When they meet, when Fish and Wildlife meets with the BLM of the Forest Service, by the way, they meet in secret, there are no notes kept, the public has no idea what they say, and then something happened.

[00:50:29] Speaker 06:
So we couldn't challenge it, even if we wanted to challenge it, and there's really no final agency action to challenge.

[00:50:38] Speaker ?:
Okay.

[00:50:39] Speaker 06:
The standard, the adverse modification standard that is applicable to critical habitat is tied to the recovery of the species.

[00:50:50] Speaker 06:
Not to jeopardy, not preventing extinction, but actually recovering.

[00:50:54] Speaker 06:
It is a very strict standard.

[00:50:57] Speaker 06:
And now the agencies cannot adversely modify 3 million acres of the 4 million acres that they were supposed to conduct timber harvest on.

[00:51:11] Speaker 06:
So 75% of where the timber was supposed to come from is now subject to the adverse modification standard, which cannot

[00:51:24] Speaker 06:
mean more cutting, it can only mean less cutting.

[00:51:28] Speaker 06:
Maybe not a complete prohibition, but clearly there's a high likelihood of less cutting, no likelihood of more cutting.

[00:51:40] Speaker 06:
Alright, finally,

[00:51:42] Speaker 06:
back to Mountain State, it did not involve a particular project, it involved a plan for a 400,000 acre section of the National Forest in Montana, and it is therefore

[00:51:58] Speaker 06:
But really, it can't be distinguished as involving a project.

[00:52:04] Speaker 06:
So that is just not true.

[00:52:06] Speaker 06:
You especially read the district court decision.

[00:52:09] Speaker 06:
It actually explains most clearly what it was that they were challenging.

[00:52:16] Speaker 06:
All right.

[00:52:18] Speaker 06:
That is it.

[00:52:19] Speaker 05:
Thank you.

[00:52:19] Speaker 05:
Okay.

[00:52:19] Speaker 05:
Thank you very much.

[00:52:24] Speaker 05:
Case is submitted.

[00:52:26] Speaker 05:
I'm sorry, Ms Drummond, we'll give you a minute if you'd like it, but if you'll need to.

[00:52:41] Speaker 05:
A brief minute is 60 seconds.

[00:52:43] Speaker 01:
Thank you, Your Honor.

[00:52:45] Speaker 01:
Bear that in mind.

[00:52:47] Speaker 01:
Just one point I wanted to make, and this is clear in the briefing, but the counties did establish standing when they intervened and it was never questioned at any point up until the show clause order.

[00:52:59] Speaker 01:
Also, there are a number of cases.

[00:53:01] Speaker 01:
the county's standing is consistent with, for example, funds for animals, V. Norton, where China's natural, or the sheep there was a natural resource.

[00:53:11] Speaker 01:
Here we have the forest in the Alps, which are the county's natural resources, but also pointed the court to Cape Hatteras, County of San Miguel, V. McDonald, with very similar analysis.

[00:53:21] Speaker 01:
And of course,

[00:53:22] Speaker 01:
If the swimmer and Friends of the Earth fee lay law have standing, and if the individuals with an appreciation for a battlefield site have standing, then certainly the counties with nearly 20% and up to 50% of their land base designated certainly have standing.

[00:53:38] Speaker 01:
Thank you, Your Honors.

[00:53:39] Speaker 05:
Thank you very much.

[00:53:40] Speaker 05:
Now the case is submitted.