[00:00:01] Speaker 00: Case number 15-5070, Friends of Animals appellant versus Sally Jewell and her official capacity as Secretary of Interior at Elle. [00:00:10] Speaker 00: Mr. Harris for the appellant, Mr. Oakley for the appellees. [00:00:49] Speaker 03: Good morning. [00:00:49] Speaker 03: Good morning. [00:00:50] Speaker 03: I'm going to please the court. [00:00:51] Speaker 03: My name is Michael Harris, and I'm here today on behalf of the Appellant Friends of Animals. [00:00:55] Speaker 03: I'd like to reserve two minutes rebuttal. [00:00:58] Speaker 03: This is one of several cases that have been brought over the last decade involving three antelope species that are critically endangered in their home ranges in North Africa, but are being raised in the United States on ranches for the purpose of being hunted, primarily for sport. [00:01:15] Speaker 03: Each of these cases really presented a dispute between two parties, the hunting ranch industry and animal advocacy groups like Friends of Animals, as to whether these captive antelopes should be regulated under the Endangered Species Act. [00:01:29] Speaker 03: It had appeared that that question had been addressed and answered by Judge Kennedy in 2009 in an opinion that he wrote that became a final judgment. [00:01:38] Speaker 03: stating that section 10 of the Endangered Species Act applied to these captive antelope, that the ranches were under an obligation to obtain permits if they were intending to take them on these ranches, and that groups like Friends of Animals had a right to participate in the permitting process. [00:01:57] Speaker 03: Now apparently unhappy with that outcome and with the outcome of some subsequent litigation that was brought to try to overturn it. [00:02:04] Speaker 03: The Hunting Ranch Industries found an ally in Congress, which leads to Section 127, a rider to the 2014 Consolidated Appropriations Act, which is a single sentence. [00:02:17] Speaker 03: Doesn't change anything in the Endangered Species Act. [00:02:20] Speaker 03: The Endangered Species Act looks the same today as it did before 2014. [00:02:26] Speaker 04: What did it say? [00:02:27] Speaker 03: What happened was that he directed Fish and Wildlife Service to essentially ignore the findings of Judge Kennedy that Section 10. [00:02:35] Speaker 03: That's not what it said. [00:02:37] Speaker 03: The word ignore is not in there. [00:02:38] Speaker 03: What did it say? [00:02:39] Speaker 03: It said specifically to reinstate the 2005 rule without regards to any other provision of law, which without regards to any other provision of law means. [00:02:48] Speaker 04: Doesn't Congress have the power to do that? [00:02:50] Speaker 03: Congress has the power to change the law substantively, correct? [00:02:53] Speaker 03: But when you're looking at what Congress does that affects the judicial branch, I think that the lens is a little bit different. [00:03:00] Speaker 03: We have both the plot case as well as Klein, and both of them are a little bit different. [00:03:06] Speaker 03: With Claude, I think you really have to say, what is the effect here? [00:03:11] Speaker 03: Was there really a perspective change in the law? [00:03:14] Speaker 03: What is it about the Endangered Species Act that is different today than it was before? [00:03:19] Speaker 03: Well, and I understand that's what the government will argue, but what it really did... [00:03:29] Speaker 04: It's been overwritten in that particular by that kind of. [00:03:32] Speaker 03: That's true. [00:03:33] Speaker 03: But whether that was constitutional or not is still a question that's pending. [00:03:37] Speaker 03: And when that decision by Congress to override, and you may say, what is it overriding? [00:03:43] Speaker 03: Is it overriding Judge Kennedy's interpretation? [00:03:46] Speaker 04: Or is it overriding Section 10 altogether? [00:03:50] Speaker 03: I don't think it has to. [00:03:52] Speaker 03: I don't think in a plot that Judge Scalia was too worried about the intent specifically of Congress. [00:04:01] Speaker 03: The judgment plot was a decision that a claim under the Securities [00:04:07] Speaker 03: The Exchange Act involving deceit and fraud was no longer valid. [00:04:12] Speaker 03: The statute of limitations had run and Congress attempted in a substantive statute to rewrite the statute of limitations so that the plaintiff could pursue its claims. [00:04:21] Speaker 04: My own suspended form, apron case, all involve judgments at law. [00:04:27] Speaker 04: This involves an administrative decision about the order of application of statutes. [00:04:34] Speaker 04: Isn't that a very real difference? [00:04:36] Speaker 03: I think that at the time the Constitution was written, we didn't engage in this type of judicial review of administrative agency lawmaking. [00:04:45] Speaker 04: That's not a good thing. [00:04:46] Speaker 03: Maybe. [00:04:47] Speaker 03: But there are two different aspects of administrative law. [00:04:50] Speaker 03: One is, and I think a lot of the cases under Klein, and we could talk about these, really involve judicial review of a rulemaking decision. [00:04:57] Speaker 03: It's not really establishing the rights of anybody. [00:05:00] Speaker 03: But when it comes to the permitting process and the rules for permitting, [00:05:04] Speaker 03: It's adjudicative in nature. [00:05:06] Speaker 03: Listen, it really did involve rights. [00:05:08] Speaker 04: We brought this suit because we were excluded from the permitting process that we felt we had a right to in the adjudication. [00:05:28] Speaker 04: you know, I don't think it's a fine line, but I think it's important one for a couple reasons. [00:05:40] Speaker 03: One, I mean, the effect of it was looking, Judge Kennedy issued an interpretation of Section 10 regarding the rights of the Fish and Wildlife Service to issue blanket rules, the rights of [00:05:51] Speaker 03: friends of animals to participate. [00:05:53] Speaker 03: And obviously, the obligations of the hunting ranches, who clearly feel aggrieved and felt that their rights were being impugned by Judge Kennedy's decision. [00:06:04] Speaker 03: And it overturned all of that without changing the substantive law. [00:06:09] Speaker 03: Well, it overturned the question of law as to whether the ESA overrode the... I think that under Plough and all of the... You still have the same standing you had before. [00:06:21] Speaker 04: to participate. [00:06:23] Speaker 03: No, not with respect to the operative facts that were before Judge Kennedy regarding captive antelope. [00:06:28] Speaker 03: We don't have any rights anymore. [00:06:29] Speaker 03: They're gone. [00:06:30] Speaker 03: We can't comment on a single take of the captive antelope on these ranches. [00:06:37] Speaker 04: It's been completely. [00:06:39] Speaker 04: I'm sorry. [00:06:40] Speaker 04: As far as changing the law of standing, they're going to change the law of split when you're standing in it. [00:06:46] Speaker 03: Article 3 standing or standing? [00:06:48] Speaker 03: Yeah. [00:06:49] Speaker 03: I don't think that would, no. [00:06:51] Speaker 04: No, they're going to change it in this, and that's what the candidates will speak. [00:06:54] Speaker 03: No, no, Judge Kennedy found we had standing. [00:06:57] Speaker 03: But no, he was speaking to our rights under Section 10 to participate. [00:07:01] Speaker 03: They went hand in hand there, of course. [00:07:03] Speaker 04: But the real claim there was... [00:07:10] Speaker 03: Congress could change the Endangered Species Act. [00:07:14] Speaker 03: And Congress could actually probably alter Section 10 of the Endangered Species Act to exempt captive animals from requiring permits or even captive animals. [00:07:31] Speaker 04: But that's all, let's be frank though. [00:07:39] Speaker 04: it has only that authority delegated to it by Congress, right? [00:07:43] Speaker 04: Correct. [00:07:43] Speaker 04: So if Congress doesn't delegate it anymore, then it can't do that anymore. [00:07:49] Speaker 04: That's not a flaw. [00:07:51] Speaker 04: That's simply a fact. [00:07:51] Speaker 03: Well, I'm not sure if it didn't undelegated it. [00:07:54] Speaker 03: It just told it what to do. [00:07:56] Speaker 03: And in this particular, maybe. [00:07:58] Speaker 05: But it's prospective. [00:07:59] Speaker 05: It's not retroactive. [00:08:00] Speaker 05: The first opinion, Antelope 1, the decision there was not changed. [00:08:08] Speaker 05: Congress can surely change statutory delegations, authority, administrative possibilities going forward. [00:08:18] Speaker 05: They do it all the time, and we're bound by that. [00:08:20] Speaker 03: I think that's right, but I know, and again, I know it's a very- And they can be inconsistent with what we previously decided. [00:08:26] Speaker 03: I totally agree, but I know it's a very fine line. [00:08:29] Speaker 03: But I think what Judge Justice Scalia was talking about under, in Plot, is that you really need to look at [00:08:38] Speaker 03: what the effect is. [00:08:40] Speaker 03: Is this really the effect making a positive perspective change in the law, or is it just issuing what he labels a corrective legislative judgment? [00:08:49] Speaker 05: And I think that if you think about it... But it has to be a corrective judgment with respect to the prior adjudicated case to change it. [00:08:55] Speaker 03: It changed it. [00:08:56] Speaker 03: It didn't change the ESA. [00:08:58] Speaker 03: It changed only the interpretation of the ESA that Judge Kennedy [00:09:04] Speaker 03: delivered in his opinion. [00:09:05] Speaker 05: Yeah, Congress said the ESA has – we are adding something to the ESA. [00:09:10] Speaker 05: It's different than it was yesterday, and we have a right to do that. [00:09:13] Speaker 03: Well, I think that's reading more into it than when I said that it didn't do anything, because, I mean, it really just tells – Well, I know you want to say it didn't do anything. [00:09:20] Speaker 05: But I – But the problem is, what did Congress do then? [00:09:23] Speaker 05: They did something. [00:09:25] Speaker 05: The fact that you keep saying, but it was only a sentence, it was only a few words, why does that matter? [00:09:30] Speaker 03: It matters tremendously. [00:09:33] Speaker 03: As I said, I think that they could have amended section 10 of the ESA. [00:09:37] Speaker 03: The difference, of course, is it's very easy to slip a one-line sentence into a budget bill that effectively dispels a judicial interpretation of an existing act. [00:09:48] Speaker 03: Going forward. [00:09:49] Speaker 03: then it is to substantially change the ESA. [00:09:51] Speaker 03: Why? [00:09:51] Speaker 03: Why is that different? [00:09:52] Speaker 03: We're not getting it. [00:09:54] Speaker 03: Why does it matter where it is? [00:09:56] Speaker 03: It's whether it's been done. [00:09:57] Speaker 03: Well, but let's look at the reality of it. [00:09:59] Speaker 03: Endangered Species Act, outside of maybe Obamacare, is one of the most, you know, sort of threatened and attacked pieces of legislation. [00:10:09] Speaker 02: Why should we be skeptical of riders, congressional riders? [00:10:12] Speaker 03: It's not our job. [00:10:14] Speaker 03: I'm not saying, and I take it back maybe, I didn't say that it's the rider mechanism itself. [00:10:20] Speaker 03: I'm saying that a substantive change to the ESA, even in a rider bill, would be very unlikely to become law. [00:10:27] Speaker 03: It hasn't. [00:10:28] Speaker 03: I mean, there's tons of attempts to be... [00:10:31] Speaker 03: No, I'm not. [00:10:32] Speaker 03: I'm just saying that that's an important distinction. [00:10:34] Speaker 02: The problem seems so different in that it was a closed case and the statute of limitations had run, and then Congress was going back into that closed case and extending the statute of limitations to reopen it. [00:10:48] Speaker 02: And Justice Scoury's opinion is careful to characterize that as retroactive legislation altering consequences that attach to your prior behavior. [00:10:58] Speaker 03: You're correct. [00:10:59] Speaker 03: But if you go through his sort of complete analysis of how he got to that conclusion, looking at all of the evils of the legislature issuing corrective judgments and so forth, a lot of the cases that he cited weren't just reopening or telling the courts to go back to work on a particular case that they had closed, but really talked about literally private parties doing exactly what they did here, finding it easier to use the legislative branch to correct concern. [00:11:27] Speaker 03: correct disagreements that it had with the court regarding its rights. [00:11:30] Speaker 05: So the problem you have is Wheeling is a closer case. [00:11:33] Speaker 05: And Plot cites Wheeling and says, we don't mean to call it into question. [00:11:38] Speaker 03: But Wheeling, though, was never a final judgment. [00:11:41] Speaker 03: Wheeling was a case in equity in which an injunction was issued, which was subject to modification and would be today. [00:11:48] Speaker 03: And one of the grounds for modifying an injunction in a suit of equity includes a change in the legal status of whatever's at issue. [00:11:57] Speaker 05: Right. [00:11:57] Speaker 05: It's a going forward. [00:11:58] Speaker 05: It's the same thing as here. [00:11:59] Speaker 05: It's looking forward. [00:12:00] Speaker 05: Congress is effectively saying, as Wheeling says, going forward, here's what you can and cannot do. [00:12:06] Speaker 03: That's exactly what happened here. [00:12:07] Speaker 03: The Supreme Court in Wheeling even said that if it was a case in law, it would have been different. [00:12:12] Speaker 03: And here, when Judge Kennedy issued a binding interpretation of Section 10 as to the rights of parties to participate or the obligations of parties to participate, it was a determination of law. [00:12:24] Speaker 03: It interpreted a statute. [00:12:26] Speaker 03: There's no equity at issue. [00:12:27] Speaker 03: He wasn't going to say, oh, by the way, things have changed on the ground. [00:12:31] Speaker 03: Now we think it should be more fair for us not to get a permit. [00:12:34] Speaker 03: It was just a binding interpretation. [00:12:36] Speaker 04: That doesn't change anything about what did you just say. [00:12:39] Speaker 04: This is a going forward mandate in the country. [00:12:43] Speaker 04: It's not a retroactive correction, as you would say, or something like that. [00:12:48] Speaker 03: Wait, I understand that that's the government's view. [00:12:51] Speaker 03: I'm just distinguishing wheeling them. [00:12:53] Speaker 03: Whoa, whoa, whoa. [00:12:53] Speaker 04: Why isn't that a fact? [00:12:54] Speaker 04: Why isn't that right? [00:12:54] Speaker 05: As opposed to saying by the government, he... Because all of what Judge Kennedy said with respect to how the statute applies, with respect to anything other than U.S. [00:13:02] Speaker 05: captive herds, is still in play. [00:13:04] Speaker 05: And there's nothing going forward. [00:13:07] Speaker 05: There's nothing that's been – Congress didn't change that. [00:13:09] Speaker 03: It's – but it's changed our adjudicator rights to participate in that process. [00:13:13] Speaker 05: With respect to one piece, it's because Congress changed the statute. [00:13:16] Speaker 03: But it – well, I actually – I'm going to maybe move to SWIFT then for a second, which is obviously a different argument. [00:13:23] Speaker 03: And that has to do with our ongoing litigation over the validity of the permits. [00:13:28] Speaker 03: And in that case, Klein is different. [00:13:30] Speaker 03: Now, in Klein, the Supreme Court in Robinson said that there actually has to be a detectable change in the law. [00:13:39] Speaker 03: And actually, going back to Plough, when Justice Scalia was looking at that, he said it needs to be a change in the substantive criteria that a court would apply. [00:13:48] Speaker 03: There's been no change in the substantive criteria under the Endangered Species Act. [00:13:52] Speaker 03: It remains the same as it was today, as it was then. [00:13:56] Speaker 03: And the only thing that was changed was the rights that were adjudicated by Judge Kennedy. [00:14:03] Speaker 03: And it also changes our ability to continue to participate, whether it's in the administrative process or pursue judicial review of the permits that are being issued. [00:14:15] Speaker 03: I think I saw it. [00:14:20] Speaker 03: Question of standing, I'm not sure if it's come up, and I know actually Judge Centelli said that jurisdiction is the thing that should be argued first. [00:14:29] Speaker 03: I think the only thing I'd say there is I feel there was a disconnect in the district court between what our injury was and what our claims were. [00:14:36] Speaker 03: I think understanding it's important to note that [00:14:39] Speaker 03: as long as the action that the government took injures you, you should have, and that the court could redress that injury, that you would have standing to bring the case. [00:14:48] Speaker 03: And they look at the field case, which is a completely different situation, in which there was a Section 9 claim that was brought, [00:14:58] Speaker 03: and they were alleging informational injury under section 10. [00:15:01] Speaker 03: And the court just found that it was too speculative. [00:15:03] Speaker 03: And somehow, the court below read that as saying that you sort of have to reach your place. [00:15:08] Speaker 04: I'm trying to think you have standing, but I want to make sure you state it. [00:15:13] Speaker 04: What is the harm here that you say it caused by the respondent? [00:15:16] Speaker 03: Well, every court that's looked at section 10C, including- Don't tell me what every court's done. [00:15:21] Speaker 04: Tell me what is the harm here. [00:15:23] Speaker 04: Let's just wait. [00:15:24] Speaker 04: What is the harm here? [00:15:25] Speaker 04: Would you say the code of the response can be remedied in this case? [00:15:30] Speaker 03: Right. [00:15:30] Speaker 03: So prior to Section 127 being enacted, we had a right under Section 10C not only to obtain the application materials that were submitted to Fish and Wildlife Service, but to have all the information before the agency at every stage of the proceedings so we could participate. [00:15:47] Speaker 02: Thank you. [00:15:58] Speaker 01: Please support. [00:15:59] Speaker 01: My name's Robert Oakley. [00:16:00] Speaker 01: I'm here on behalf of the federal defendants and the appellees. [00:16:04] Speaker 01: I think I should start off with standing. [00:16:08] Speaker 01: I'd like to correct at the beginning a basic error in the reply brief for Friends of Animals where they say, don't look at this case under Lujan, under the standards for entry for Lujan. [00:16:18] Speaker 01: Look at it under Akins. [00:16:20] Speaker 01: There's no difference. [00:16:22] Speaker 01: Akins cites Lujan five times. [00:16:25] Speaker 01: And so the standard, whether the injury is informational or it's a different type of injury, has to meet the criteria for Lujan. [00:16:33] Speaker 02: They were entitled to information. [00:16:36] Speaker 02: The statute took away, in their view, that entitlement to information. [00:16:39] Speaker 02: They're deprived of the information that they otherwise want. [00:16:43] Speaker 02: They say that's unconstitutional. [00:16:45] Speaker 02: Under Akins, why isn't that good enough? [00:16:47] Speaker 02: They want to use the information for a variety of purposes. [00:16:50] Speaker 01: It's not good enough because the injury is not specific enough. [00:16:55] Speaker 01: In Akins, the court, while the court clearly recognized it was granting standing on an informational basis, [00:17:02] Speaker 01: to a lot of people. [00:17:04] Speaker 01: It still went through a loophole. [00:17:06] Speaker 02: You have a public citizen and Havens as well on that front. [00:17:08] Speaker 01: Yes, but an interesting thing is, especially if you look at Havens, you need to look at, I think, the type of the information and what was the effect of the denial. [00:17:17] Speaker 01: Havens involved a housing organization that was trying to find housing [00:17:22] Speaker 01: for poor people in the Chicago area. [00:17:25] Speaker 01: So if they got false information from realtors that there were no apartments available in the north side part of Chicago called Rogers Park, they'd pass that misinformation on to them. [00:17:37] Speaker 01: It was practical information, information that they were in the business of... One year and five on Hades. [00:17:43] Speaker 04: What about Hades? [00:17:45] Speaker 01: Akins, again, it found a specific enough need, and I think I would direct the discourse attention to what they are complaining, what Friends of Animals are complaining about here. [00:17:57] Speaker 01: And they're complaining here, really, that the government, under Section 10C, allows sport hunting of these endangered species. [00:18:05] Speaker 04: I don't understand the Akins say a whole lot about setting the limits of the need required to have an intermarriage. [00:18:16] Speaker 01: It was decided, and the sport has to follow it. [00:18:20] Speaker 01: But I think there is a distinction here. [00:18:23] Speaker 01: If you look at pages 94 in particular, where they lay out their harms, they are all harms about affecting their ability to advocate for the end of sport hunting of these endangered species. [00:18:37] Speaker 04: This court seems to establish a right to standing on a pure informational basis that if a statute provides a right to the information, I don't understand if the plaintiffs in 1850 needed to show what they were going to do with the information. [00:18:54] Speaker 01: There was discussion. [00:18:56] Speaker 01: Perhaps I once did, but I don't anymore. [00:18:59] Speaker 01: Well, I would agree with Your Honor, but as to different statutes, I think it's clear as to FOIA, for example, all you have to do is show you asked for some information. [00:19:11] Speaker 04: We're not asking you to concede validity of your claim here, just that it's taped enough to get them all standing. [00:19:18] Speaker 01: Well, we have debated this quite a bit because we're familiar with the court's decisions and we know that there's quite a bit of discussion going on in various cases about associational standing based on alleged [00:19:35] Speaker 01: denial of information. [00:19:36] Speaker 01: And I think I would respectfully say, Judge Santel, that I think Acons actually pulls back from cases like, Supreme Court cases like Public Citizen, because they, while again, it is one large group of people. [00:19:50] Speaker 02: It cites Public Citizen approvingly in the key paragraph on 21. [00:19:54] Speaker 01: It does. [00:19:54] Speaker 01: It does. [00:19:55] Speaker 01: But in Public Citizen, [00:19:58] Speaker 01: The requirements for FOIA are just you ask and you don't get what you you could ask for anything. [00:20:04] Speaker 04: You could ask for pictures of Elvis and what they're saying here before, and I may be oversimplifying a misunderstanding. [00:20:10] Speaker 04: We had the right to comment before. [00:20:12] Speaker 04: And now we don't have the right to comment, so it's not exactly in the way that the First Amendment situation analogous to the. [00:20:21] Speaker 05: Can I ask you respectfully why are you wasting time on this when you see the case law is what it is and why don't you get to the merits? [00:20:28] Speaker 05: I want to get to the mayor's very much. [00:20:30] Speaker 05: You want to take all your time. [00:20:31] Speaker 01: I'm not getting there. [00:20:32] Speaker 01: And I think I'm going to move there pretty quickly. [00:20:35] Speaker 01: Like now? [00:20:36] Speaker 01: Like now. [00:20:37] Speaker 01: That would be really good. [00:20:40] Speaker 01: Now, counselor. [00:20:42] Speaker 01: Now, now, I will. [00:20:44] Speaker 01: But I'm not conceding. [00:20:46] Speaker 01: I'm just moving. [00:20:47] Speaker 01: All right. [00:20:48] Speaker 01: So let's go then to why, in this case, it's not like the cloud or why it's not like fun. [00:20:53] Speaker 01: This is an APA case. [00:20:55] Speaker 01: So the only thing that happened when Judge Kennedy found the rule invalid was that the case was remanded back to the agency to come up with a valid rule. [00:21:05] Speaker 01: He didn't tell the agency how to write that rule. [00:21:09] Speaker 01: The agency even considered if it would be possible, it would obviously be very difficult, but would it be possible on a different administrative record to justify the original rule and concluded it could not. [00:21:20] Speaker 01: But it considered it. [00:21:22] Speaker 01: And it would have not automatically have been wrong. [00:21:26] Speaker 01: It would have been risky, but it would not have automatically been wrong of the agency to do that. [00:21:30] Speaker 01: The agency could have created a different standard for these three species in terms of reporting. [00:21:35] Speaker 01: There's a host of things to be done. [00:21:37] Speaker 01: So it was not a final, fixed process. [00:21:39] Speaker 01: It's not like Plout where, because of the Supreme Court's decision on the statute of limitations, [00:21:46] Speaker 01: The cases were finally dismissed. [00:21:49] Speaker 01: They were done. [00:21:49] Speaker 01: There was no way to revive them. [00:21:51] Speaker 01: They're just not analogous at all. [00:21:54] Speaker 01: And Judge Scalia was, I think, quite open about this, that this would work if the change were prospective. [00:22:02] Speaker 01: I mean, this is a quote from his decision. [00:22:05] Speaker 01: Congress can always revise the judgments of Article III courts in one sentence. [00:22:10] Speaker 01: When a new law makes clear it is retroactive, an appellate court must apply that law in reviewing judgment still on appeal that were rendered before the law was acted and must alter the outcome accordingly. [00:22:22] Speaker 01: So possibly if the next day Congress had changed the law, maybe this [00:22:26] Speaker 01: The cases were still, or better yet, before the argument. [00:22:32] Speaker 01: But what Congress can't do, and what Congress did not do here, is go back and say, well, no, Supreme Court, you're wrong. [00:22:38] Speaker 01: The law, when you decided the Laff case, which is the case that changed, that revolved the Circuit's limit on statute of limitations, [00:22:46] Speaker 01: That decision was wrong, and so it has no effect. [00:22:49] Speaker 01: Congress cannot do that. [00:22:50] Speaker 01: Congress did not do that. [00:22:52] Speaker 01: The cases that counsel referred to that are pending but stayed in district court, which were based on the period of time when [00:23:02] Speaker 01: The rule was in place where the permits were being, notice of the permits were being published in the Federal Register. [00:23:10] Speaker 01: Those cases are not necessarily affected by this rider. [00:23:17] Speaker 01: They're pending, but they've disputed that whether the permits require [00:23:23] Speaker 01: compliance or did the permits did comply with tenancy, and those cases, we're not asking the court to address them in any way. [00:23:33] Speaker 01: But from now on, Congress has changed the rule. [00:23:39] Speaker 01: And as far as language, there's certainly no magic language, although at times I think Friends of Animals is looking for some magic language, which we don't know about, because they say, well, it didn't do enough. [00:23:55] Speaker 01: This language is notwithstanding any other provision of law. [00:23:58] Speaker 01: It's very similar to the language in the National Coalition to Save Our Mall case from this court. [00:24:05] Speaker 01: where Congress said, notwithstanding any other provision of law, the plans for monuments on the Mall were going to satisfy these various environmental statutes, like NEPA and other statutes. [00:24:19] Speaker 01: And that was satisfactory. [00:24:23] Speaker 01: And really, if you look at it, wow, that's their only case. [00:24:29] Speaker 01: There's a lot of speculation from language from cases, but they don't have any other case where Congress has said, well, except for Klein, which I'll get to in a second, this invades the lack of language. [00:24:48] Speaker 01: Not enough was said. [00:24:49] Speaker 01: They had no cases on that. [00:24:51] Speaker 01: means that nothing happened. [00:24:54] Speaker 01: That Congress passed a bill with a provision in it, but nothing happened. [00:24:59] Speaker 01: They just don't have that case. [00:25:01] Speaker 01: Klein is a very unique case. [00:25:03] Speaker 01: It involved the question of the president's pardon power and constitutional implications there. [00:25:10] Speaker 01: But the bottom line here is that Congress was not acting to come into an ongoing case and say, [00:25:19] Speaker 01: This is what you have to do in this one case. [00:25:27] Speaker 01: I have to say there's a lot of confusion about what Klein does mean. [00:25:31] Speaker 01: But if you look at the Robinson case, I'm sorry, from the Supreme Court, where Congress passed a [00:25:39] Speaker 01: statute which said if certain measures were done or satisfied with ongoing cases, and it named the cases by docking them, then the government, and it had to do with management of national forests, would be in compliance with law. [00:25:58] Speaker 01: And that was upheld by the Supreme Court over a client challenge. [00:26:02] Speaker 01: So there's simply no case where Klein has been used since Klein to overturn the statute. [00:26:10] Speaker 01: And if we look at it, the only thing that happened here is the judge said, Judge Kennedy said, my opinion is, [00:26:20] Speaker 01: The exemption allowed from the reporting requirements from Tennessee is contrary to the statute. [00:26:26] Speaker 01: Congress changed the statute. [00:26:27] Speaker 01: It didn't say anything about cases that were litigated before then. [00:26:30] Speaker 01: It wasn't critical of Judge Kennedy. [00:26:32] Speaker 01: He's not mentioned. [00:26:34] Speaker 01: And from now on, the statute isn't inconsistent with that rule, because Congress told the government to reinstate that rule. [00:26:42] Speaker 01: So unless the Court has other questions on these issues, I would ask the Court to affirm. [00:26:47] Speaker 01: Thank you. [00:26:55] Speaker 03: So I want to come back to Rob Klein and Robinson for just one moment. [00:26:59] Speaker 03: And although the words that have been mentioned here without any concern of any other laws have been used in other writers, none of the cases in the post Robinson era relied solely on that itself being the change in the law. [00:27:15] Speaker 03: If you look at Robinson itself, it clearly changed. [00:27:19] Speaker 03: And again, Robinson says that Congress must change the substantive law in some detectable way. [00:27:25] Speaker 03: And in Robinson, Congress did just that. [00:27:29] Speaker 03: because the agency in that case was having trouble complying with the Migratory Bird Treaty Act, it stated, it was in a writer, but it was substantive, it said in an alternative to complying with the existing requirements of the Migratory Bird Treaty Act, the agency can also comply in this particular matter. [00:27:44] Speaker 03: So it changed the substantive law. [00:27:46] Speaker 03: If you look at the other cases that followed, Stop H3 Association, Mount Graham, and Consuejo, [00:27:52] Speaker 03: All of those cases involved substantive changes in the law. [00:27:55] Speaker 03: Congress had previously granted broad delegation, rulemaking authority. [00:27:59] Speaker 03: The agency was having problems complying with its mandates on certain projects. [00:28:04] Speaker 03: And Congress said, look, instead of doing what you're doing, this is what you're going to do. [00:28:09] Speaker 03: You're going to build a highway from this mile marker to this mile marker, or you're going to put a telescope here on the Mount Graham case. [00:28:17] Speaker 03: very substantive changes in the law that was directing those delegations. [00:28:22] Speaker 03: You come to two cases that are more problematic, Save Our Mall and Wild Rockies. [00:28:27] Speaker 03: Quite frankly, they seem to be inconsistent with Robinson. [00:28:30] Speaker 03: There was no detectable change in the substantive line either. [00:28:35] Speaker 03: And the court grappled with what to do with the language about, you know, just do it, don't worry about what else the law says and so forth. [00:28:42] Speaker 03: It never hinged itself on that being actually a detectable change in the law. [00:28:47] Speaker 03: Both those cases ultimately said, well, they also said that it shouldn't be subject to judicial review, and that's a detectable change in the law. [00:28:55] Speaker 03: Nothing like that happened here. [00:28:56] Speaker 03: There is no detectable change in the substantive law. [00:28:59] Speaker 03: Thank you. [00:28:59] Speaker 03: Thank you. [00:28:59] Speaker 03: The case is submitted.