[00:00:03] Speaker 00:
Case number 15-5170, Safari Club International at Elle Appellants vs. Sally Jewell in her official capacity as Secretary of the Department of the Interior at Elle.

[00:00:13] Speaker 00:
Ms.

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Burden for the Appellants, Ms.

[00:00:15] Speaker 00:
Krantz for the Appellees.

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Good morning.

[00:00:47] Speaker 03:
Good morning.

[00:00:47] Speaker 03:
May it please the court, I'm Doug Burden for Appellants, Safari Club International, National Rifle Association of America.

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With me at council table is Anna Seidman with SCI and Michael Jean with the NRA.

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I reserve two minutes for rebuttal.

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I'd like to address two interrelated issues.

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First, finality, and then standing in mootness.

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For both, the key is that SCI and NRA are challenging final, past, underlying actions to the 2014 enhancement and non-detriment findings.

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These past actions did not start in 2014, and they did not end in 2014.

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Also, common to both is the fact that applying for a permit would be futile here because the hunters do not have the information that the service is demanding.

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Can we take them in order of the, if I remember correctly, this report seemed to assume that if you can dispose of finality, you don't have to address standing as a steel coal exception.

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I'm not, I haven't seen any cases that say that that's a threshold issue of the sort.

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side.

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Standing first, do you have standing?

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If so, what's the argument?

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And then, of course, related to it is the question of mootness.

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Those are the threshold issues that I think we must address.

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Finality is around there, but if you get over the standing mootness question.

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Yeah, and they are related, and I agree with you.

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I'm uncertain about what the court is supposed to do first when, but I was just following the lead of the district court.

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But I can start withstanding the arguments have some of the same elements to them.

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So the point is that we are challenging actions that did not start in 2014.

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They relate to the services requirement that the hunters show an enhancement finding at all.

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We argue in our complaint, claim seven, that that is not required at all for elephants from Tanzania.

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Second is that our claim eight is that for the non-detriment finding, the service is supposed to look at the impact of the importation on the species and not look at the impact of the hunting and the hunting program on the species.

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So these are two fundamental legal errors that started in the past.

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So what is the concrete injury the Supreme Court this past spring

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went out of its way to separate particularity and concreteness and put a big emphasis on concrete.

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You can meet particularity.

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They're saying something to us.

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That is, you'd better find a concrete – what's the concrete injury here?

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No one applied for anything.

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No one went hunting.

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No one did anything.

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That's the other side's argument.

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So what's the concrete injury?

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Well, there's two injuries.

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One is that because of these two illegalities, and for purposes of standing, the court assumes that plaintiffs are correct and the agency shouldn't have made an enhancement finding at all and should have looked at the impact of the importation, not the hunting.

[00:04:10] Speaker 03:
So the impact on the hunters, first, if they, in deciding whether to take one of these hunts, which costs a lot of money, they have to look at what they're showing is.

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And when the service made the negative findings, that placed a burden on the

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on the hunters to come up with information about elephant mortality versus elephant population rate.

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That's what the service wanted before it would change its mind.

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Wasn't that always in the rule?

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It's just they decided to enforce it now?

[00:04:44] Speaker 03:
Yeah, it's always been in the rule, but until 2014, the service had made positive findings, which relieved the hunters for the obligation of showing that.

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I'm posing the arguments the way I think the other side is posing, to see what your answer is.

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How could there be a concrete injury if you never went to find out whether or not the rule that has always been there now reportedly going to be enforced

[00:05:13] Speaker 04:
used against you well it has been used against them because the service made no no one no one sought none of your plaintiffs sought a permit you sat on your procedural rights so to speak your argument is well we did because the standard looked too hard

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Well, the standard was they were asking for information that the hunters didn't have.

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So why go hunt an elephant?

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Why go through the process of applying for a permit and trying to overcome these new burdens on them when it was futile?

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They didn't have the information.

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And our claims are that they shouldn't have had to make that showing at all.

[00:05:57] Speaker 01:
Isn't that argument independent of your argument that the agency should never have required an enhancement or detriment finding here?

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In other words, maybe I misunderstood your argument.

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I thought you were arguing that even if those findings were required, you have standing because you were in effect denied a permit.

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Correct?

[00:06:21] Speaker 01:
No.

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No?

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You're not arguing that?

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None of our members were denied a permit.

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I know that.

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I said, in effect.

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That is, it would be futile to have applied for that.

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Oh, yeah.

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I'm sorry.

[00:06:32] Speaker 03:
I misheard you.

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So am I right about that?

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Yes, that's one of our arguments.

[00:06:36] Speaker 01:
Well, but do I need to agree with you?

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Is that independent of your argument that, here, is that

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Okay.

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Count six, you say these are legislative rules requiring notice of comment.

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Count seven, you say that the arguments you're talking about here that require retaining an enhancement finding violates the act.

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And eight, is it that they apply the wrong standard?

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Those are three counts.

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But you're also arguing, aren't you,

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It was futile to even apply for a permit, correct?

[00:07:23] Speaker 01:
Yes.

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And are those arguments all related to each other or not?

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In other words, if you're right that it was futile to apply for a permit, do you have standing?

[00:07:37] Speaker 03:
Yes.

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You have standing to raise those other issues, correct?

[00:07:40] Speaker 03:
Yes.

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But we also have standing to raises, regardless of whether applying for a permit would be futile, because they're- I understand that.

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But if you're right that there's a futility exception and that it applies here, under your theory, you have standing, right?

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Yes.

[00:08:00] Speaker 04:
OK.

[00:08:02] Speaker 04:
And what is your answer to their mootness argument?

[00:08:07] Speaker 03:
Well, because we're challenging these underlying

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claims 2014 is gone, no one can say I was denying anything because they didn't do anything.

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So arguably it's moot, the case is moot.

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Now what is, are you saying it's capable of repetition the other day in review?

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Because it's not, if you would use the process, you would have gotten a review.

[00:08:39] Speaker 03:
Well, I think it is capable.

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But first, the reason that it's not moot is because we are challenging past actions that underlie the 2014 decision.

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The past actions can moot out.

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Yeah, but they don't.

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They still apply in 2015.

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Well, you can't.

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No one can get it permitted.

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No one even asked for it to be permitted in 2014.

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Right.

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So their argument is, there's nothing here.

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And it's not capable of repetition and evading review.

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You'll always get review.

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Their argument is, I'm giving you their arguments.

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I mean, if you come and use our procedure, you'll get full review and full litigation.

[00:09:19] Speaker 04:
It's not going to go away.

[00:09:21] Speaker 04:
So what's your answer to that?

[00:09:22] Speaker 03:
Well, first is that we're challenging these underlying actions that don't go away with 2014, so they're not moved.

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It's like the Defenders of Wildlife Bobcat case, which involved a non-definite finding for the export of bobcats.

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the plaintiffs were trying to stop the exports for that particular year.

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But included in that, they had underlying claims, challenging policies, and underlying the non-detriment findings.

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Yeah, but see, what they're arguing is that someone had hunted in 2014 and then been denied permission to come in.

[00:09:59] Speaker 04:
You know, that claim is fully litigatable.

[00:10:04] Speaker 04:
Trophies we want to bring them in they were denied a permit and you've got standing.

[00:10:08] Speaker 03:
It's not moved because no matter what year it is that 2014 claim is there still to be litigated I understand it and that is one way to have standing and challenge these these by underlying actions, but Those underlying actions don't disappear with 2014.

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They're still here and

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Now, what would you say, I want to just play it out of my head, make sure I understand what you're arguing.

[00:10:34] Speaker 04:
Your argument, I guess, would be that if in 2015 they tinkered with this regulation or rule or interpretation so that it was different from what they said they were doing in 2014, wouldn't that move you out?

[00:10:45] Speaker 04:
No.

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What I'm saying is... Wait, wait, wait, wait.

[00:10:48] Speaker 04:
How not?

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You have no one who went hunting in 2014, no one who was denied a permit,

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This is my hypothetical.

[00:11:00] Speaker 04:
They changed the rule.

[00:11:02] Speaker 04:
You think you can litigate about 14?

[00:11:04] Speaker 03:
Oh, if they changed the rule?

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Yes.

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Well, if they changed it significantly and they made a positive finding, then we wouldn't need to.

[00:11:11] Speaker 04:
No, no, not that they just changed the rule.

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And they say it's not even the same rule.

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And they warrant it in 14 because no one did anything.

[00:11:19] Speaker 03:
I'm not sure what you mean by change.

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What rule are they changing?

[00:11:22] Speaker 04:
They're changing the enhancement rules.

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Who has to prove what, et cetera.

[00:11:27] Speaker 03:
Then we'd have a different case.

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But now, in 2015 and 2016, these two past underlying actions are still affecting the hunters because they're putting burdens on those hunters, regulatory burdens which we cite cases, CropLife and others, that can create sanding.

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And because of those two underlying actions,

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It's much less likely that the services ever going to, with Tanzania, make positive enhancement findings and positive non-detriment findings.

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And that's what discourages these hunters from even undertaking the hunt, because they know they can't bring back the trophy.

[00:12:07] Speaker 04:
Now, you want to hook this general argument to try and dispose of exhaustion and finality, right?

[00:12:12] Speaker 04:
Yes.

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agency action here.

[00:12:18] Speaker 03:
Well, again, the two underlying actions are final.

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They made them the consummation of the decision-making process.

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Nothing indicates they're going to revisit the requirement to show enhancement and the requirement that non-detriment is based on the hunting and not the importation.

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See, here's the worry on the court because the exhaustion finality and rightness all kind of come into play in this case are very strange.

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How would we get ourselves in the middle of this when you didn't use the process?

[00:12:49] Speaker 04:
We're hanging a whole lot on futility.

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That is your claim that you can't make the case.

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We haven't seen you try.

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And so even if you have standing, you don't have a moot case, within the compass of exhaustion, finality, and rightness,

[00:13:06] Speaker 04:
courts would normally worry, well, they didn't even go and try.

[00:13:09] Speaker 04:
We're not sure that they really are making sense when they say they could never prove it.

[00:13:14] Speaker 04:
That's self-serving for you to come in and say, we could never meet the standard.

[00:13:18] Speaker 04:
And it's a standard that's always been there.

[00:13:22] Speaker 04:
They just decided to enforce it now.

[00:13:25] Speaker 03:
Well, I respectfully disagree that they just decided to enforce it.

[00:13:28] Speaker 03:
They changed their findings for 20 years.

[00:13:30] Speaker 04:
But they've always had that authority, right?

[00:13:33] Speaker 04:
Yes.

[00:13:33] Speaker 04:
OK.

[00:13:37] Speaker 04:
sitting on the bench, are we supposed to get in the middle of this now when they didn't go and see what that really meant by playing out a process that was available to them?

[00:13:45] Speaker 03:
But that process would not have addressed the two underlying issues.

[00:13:50] Speaker 03:
What the service said, we have to help... One of the two underlying issues?

[00:13:53] Speaker 03:
Whether to require an enhancement program.

[00:13:56] Speaker 04:
Why wouldn't you argue that?

[00:13:57] Speaker 04:
You're a good attorney.

[00:13:58] Speaker 04:
The first thing you'd say is you can't mean to say what you're saying, are you?

[00:14:02] Speaker 04:
And get a ruling on that.

[00:14:03] Speaker 03:
What they said is we will accept new information.

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If you have new information, come to us.

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And we will look at that new information.

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And if you have overcome our negative finding, if you can show that the hunting enhances the survival of the species and in their wrong view, the hunting means that there's no detriment to the species, then we'll reconsider.

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Otherwise, we're not even going to consider

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your permit.

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That's what they said.

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So those those underlying factual issues were not an issue.

[00:14:40] Speaker 03:
Uh, my time is up.

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I'll reserve everything else through bottle unless there's more questions.

[00:14:48] Speaker 03:
Good.

[00:14:48] Speaker 03:
Thank you.

[00:14:53] Speaker 02:
Council for happily

[00:14:55] Speaker 02:
Good morning.

[00:14:55] Speaker 02:
My name is Erica Kranz.

[00:14:57] Speaker 02:
I'm representing the federal parties in this appeal.

[00:14:59] Speaker 02:
I'm looking at council's table as Russell Hewson for the Department of the Interior.

[00:15:04] Speaker 02:
United States doesn't directly regulate the killing of elephants by sport hunters in other countries.

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Government merely regulates the import and the trade of trophies of those animals.

[00:15:15] Speaker 02:
For elephants killed in Tanzania, CITES and the laws implementing it require hunters wishing to import such a trophy to obtain an import permit.

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Before it can issue such a permit, Fish and Wildlife Service has to be able to make two positive findings.

[00:15:30] Speaker 02:
One, that the import will be for purposes not detrimental to the survival of the species.

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And second, that killing of the animal whose trophy is intended for import would enhance survival of the species.

[00:15:41] Speaker 02:
Now plaintiffs in this case are organizations that represent sport hunters who have shown some interest in hunting elephants in Tanzania and who could have but never actually applied for a permit to import any of these.

[00:15:54] Speaker 01:
Do you agree that there's a futility exception to standing, to the requirement for filing a permit?

[00:16:01] Speaker 01:
That is, if they could show it was futile, they would have standing?

[00:16:06] Speaker 02:
There has been some law suggesting that there may be, I don't know if I would call it an exception, maybe a consideration in assessing standing.

[00:16:16] Speaker 02:
It certainly doesn't relieve the burden that plaintiffs must establish the concrete and particularized injury.

[00:16:24] Speaker 01:
But you're not answering my question.

[00:16:25] Speaker 01:
My question is – and your brief was confusing on this to me – are you – is the government's position is that there is no futility exception or that there is, but that the appellant here has not satisfied?

[00:16:39] Speaker 02:
Well, I don't think there is a futility exception to standing.

[00:16:44] Speaker 01:
Even the case, the case you cite, Albuquerque case you cite, says there's one.

[00:16:49] Speaker 02:
Well, if they can actually show that they, if they had applied, they would have been absolutely denied.

[00:16:56] Speaker 02:
I suppose you could call that a futility exception.

[00:17:00] Speaker 01:
But if they had applied, we wouldn't have a problem.

[00:17:03] Speaker 01:
If they had applied and it had been denied, you would concede that they have standing, that they've been injured, correct?

[00:17:09] Speaker 01:
Yes.

[00:17:10] Speaker 01:
Okay, well the case you cite, Albuquerque, plus many of our other cases, are quite clear about a futility exception.

[00:17:18] Speaker 01:
So it seems to me, to prevail, you need to argue that it wasn't futile.

[00:17:24] Speaker 02:
Well, it certainly wasn't futile.

[00:17:26] Speaker 02:
I mean, to the extent there is a futility exception, the standard is very high.

[00:17:31] Speaker 02:
They have to show that they absolutely would have been denied.

[00:17:35] Speaker 01:
Really, I mean, the Ninth Circuit is characterized as a... Can we just talk about the facts in this case instead of what the Ninth Circuit says?

[00:17:41] Speaker 01:
Am I right that for them to have obtained a permit, they would have had to show that the situation regarding elephants in Tanzania had changed significantly, correct?

[00:17:53] Speaker 02:
That's what Fish and Wildlife Service wanted to see.

[00:17:55] Speaker 02:
They saw countrywide problems.

[00:17:57] Speaker 01:
My answer to my question is yes, right?

[00:17:59] Speaker 01:
Yes.

[00:17:59] Speaker 01:
They would have to show.

[00:18:00] Speaker 01:
And they have no control over that.

[00:18:03] Speaker 01:
I mean, why would they?

[00:18:04] Speaker 01:
They have no control.

[00:18:05] Speaker 01:
That's not something within their control.

[00:18:08] Speaker 01:
This is a question about what about conditions in Tanzania.

[00:18:12] Speaker 01:
And they're saying, look, what they're asking us to show is impossible because conditions in Tanzania haven't changed.

[00:18:19] Speaker 02:
I don't know if they're precisely arguing that.

[00:18:22] Speaker 02:
They seem to be saying, gosh, Fish and Wildlife Service doesn't have this information.

[00:18:26] Speaker 02:
How could we possibly get it?

[00:18:28] Speaker 01:
Well, either way, doesn't that mean it's fuel?

[00:18:30] Speaker 02:
Well, this is a sophisticated organization.

[00:18:32] Speaker 01:
You just told me that Fish and Wildlife doesn't have it either.

[00:18:35] Speaker 02:
But Safari Club has close ties to the- You're missing my point.

[00:18:42] Speaker 01:
If the situation in Tanzania has not changed, they couldn't show that it has changed, right?

[00:18:49] Speaker 02:
I suppose not.

[00:18:50] Speaker 01:
OK.

[00:18:51] Speaker 01:
So it's viewable, isn't it?

[00:18:53] Speaker 01:
I don't understand why it doesn't clearly fall within the futility exception.

[00:18:58] Speaker 02:
Well, they still need to try, right?

[00:19:00] Speaker 02:
The agency retains.

[00:19:02] Speaker 01:
But now you're backing up to say there's no futility exception.

[00:19:07] Speaker 02:
I don't think we have evidence that the situation in Tanzania in 2014 hadn't changed, or at least we didn't at the time.

[00:19:13] Speaker 01:
You're changing your argument in almost every sentence.

[00:19:16] Speaker 01:
It's the government's position that

[00:19:19] Speaker 01:
the situation had changed or might have changed in Tanzania and they could have shown it?

[00:19:25] Speaker 02:
Well, stepping back into the time where this finding was relevant, 2014, Fish and Wildlife Service did say, basically, we invite you to provide us with new information.

[00:19:37] Speaker 02:
It gave a list of types of information it would consider and said other relevant information can be submitted.

[00:19:46] Speaker 02:
And so I don't think at that time we knew one way or the other whether conditions had changed.

[00:19:51] Speaker 01:
Let me ask you a specific question about the enhancement finding.

[00:19:55] Speaker 01:
The decrement finding clearly says, as you point out, that it says that the parties can submit additional information, right?

[00:20:09] Speaker 01:
But the enhancement finding – do you know where the enhancement finding says that?

[00:20:14] Speaker 02:
The enhancement finding itself doesn't include that language, but the actual permit application that an applicant fills out does specifically say that if an applicant has additional information to allow the service to make that enhancement finding, they should submit it along with their application.

[00:20:31] Speaker 04:
I'm struggling with your argument because it seems to me you're conflating everything, exhaustion, finality, standing.

[00:20:41] Speaker 04:
And if an agency has a procedure, and you're someone who routinely uses it, and that's not in doubt, and they change how you're going to operate pursuant to their procedures, and they adopt an onerous requirement, and there's no doubt, I don't think listening to you, you're doubting that this requirement is not going to be easy.

[00:21:01] Speaker 04:
You're saying you think they work really hard, they may be over, but it's onerous.

[00:21:05] Speaker 04:
How can there be any question on standing?

[00:21:07] Speaker 04:
If their regular parties

[00:21:09] Speaker 04:
It's very, very different from what they normally would be required to do.

[00:21:14] Speaker 04:
Agency has changed it.

[00:21:16] Speaker 04:
They're hurt.

[00:21:19] Speaker 04:
The causation is there.

[00:21:20] Speaker 04:
Redressability is there.

[00:21:22] Speaker 04:
And why do they have to go through it?

[00:21:23] Speaker 04:
That's the exhaustion finality stuff.

[00:21:25] Speaker 04:
But why do they have to go through anything?

[00:21:28] Speaker 04:
And why does utility even matter?

[00:21:30] Speaker 04:
If the standard is dramatically changed and they're injured, we're past that door, it seems to me.

[00:21:35] Speaker 02:
Well, I wouldn't say the standard has changed.

[00:21:37] Speaker 02:
The facts have changed.

[00:21:39] Speaker 04:
The requirements, what it is that they have to do coming into the same procedure that they've always used before.

[00:21:46] Speaker 02:
The requirements haven't changed, though.

[00:21:49] Speaker 02:
Maybe the way that they're playing out as a practical matter have changed.

[00:21:52] Speaker 04:
Or your enforcement of the requirements have changed.

[00:21:54] Speaker 02:
I suppose you could put it that way.

[00:21:56] Speaker 04:
Well, I am going to put it that way, because I think that's exactly what's happened.

[00:21:59] Speaker 04:
The enforcement standards are dramatically different, right?

[00:22:04] Speaker 02:
It's not exactly enforcement standard.

[00:22:06] Speaker 02:
It's factual.

[00:22:07] Speaker 04:
It's what they have to do in order to be able to get to prune it is different, right?

[00:22:11] Speaker 02:
What they have, they've always had to provide information.

[00:22:14] Speaker 02:
As a practical matter, the service has made these generic findings that it then applies to individual... Right, and the service said, we're not going to do it anymore.

[00:22:21] Speaker 04:
You have to do it.

[00:22:23] Speaker 02:
The service let the, let the interested parties know that they had been thus far unable to make positive findings in early 2014.

[00:22:32] Speaker 04:
I don't know why you're fighting this.

[00:22:34] Speaker 04:
I mean, it's, it's perplexing to me on the stand.

[00:22:40] Speaker 04:
I hear you now, I'm not so persuaded, but what about mootness?

[00:22:45] Speaker 04:
You make an argument, you really think it's moot?

[00:22:47] Speaker 04:
If they're fighting the change in the regulatory scheme, that's their point.

[00:22:53] Speaker 04:
We're only fighting the change in the regulatory scheme.

[00:22:56] Speaker 04:
This is not moot.

[00:22:57] Speaker 04:
It's an ongoing question.

[00:22:59] Speaker 04:
And you haven't changed the regulation.

[00:23:00] Speaker 04:
You haven't changed how you're going to enforce it.

[00:23:03] Speaker 02:
Well, the 2014 findings, as you've noted, applied only to 2014.

[00:23:07] Speaker 02:
There have been new findings made for 2015.

[00:23:10] Speaker 02:
I believe new findings for 2016 are in process.

[00:23:14] Speaker 02:
Each of those findings is going to be based on new information.

[00:23:17] Speaker 02:
It's going to be based on a new administrative record.

[00:23:21] Speaker 02:
Now, they have these underlying

[00:23:26] Speaker 02:
challenges, but those challenges are best addressed in the context of an actual live dispute about an actual trophy they'd like to import.

[00:23:36] Speaker 02:
So let's say a plaintiff in 2015... You're kind of wandering over to the other side.

[00:23:42] Speaker 04:
That is the exhaustion finality right now.

[00:23:46] Speaker 02:
I do see them as related.

[00:23:47] Speaker 02:
I think... Yeah, but it's not really moved, is it?

[00:23:50] Speaker 02:
I think it is moot.

[00:23:51] Speaker 04:
The question on the regulatory requirements is still there.

[00:23:55] Speaker 04:
You haven't changed anything in 15 and 16 on that.

[00:23:58] Speaker 04:
They still have to do what you said they had to do in 14.

[00:24:03] Speaker 02:
The service has made negative findings for 2015, yes.

[00:24:06] Speaker 01:
Can I ask you, while we're talking about mootness,

[00:24:12] Speaker 01:
The Safari Club cites in its reply brief, defenders of wildlife, as a decision by this court, defenders of wildlife versus endangered species scientific authority.

[00:24:25] Speaker 01:
Do you know of that case?

[00:24:27] Speaker 02:
Let me find out.

[00:24:29] Speaker 01:
My question is, why doesn't that completely resolve this issue here and require us to hold that this case is not moved?

[00:24:37] Speaker 01:
I mean, it looks to me identical to this case.

[00:24:41] Speaker 01:
It was a challenge to a non-detriment finding in a specific year, and we found it wasn't moved for two separate reasons.

[00:24:50] Speaker 01:
One was the complaint could be more construed far more broadly to be challenging the standards, just as this case does, just as this complaint does.

[00:25:00] Speaker 01:
And secondly, they said it was capable of repetition in the innovating review.

[00:25:05] Speaker 01:
I don't see how that case isn't on four square with this case.

[00:25:11] Speaker 02:
I believe in that case, and I am talking about different doctrines here, because I think they are really tangled up in this case.

[00:25:19] Speaker 02:
I think in the Defenders of Wildlife case, there was a more concrete injury that would persist over time.

[00:25:24] Speaker 02:
We don't have that here.

[00:25:27] Speaker 01:
What is the difference?

[00:25:29] Speaker 01:
There, they were challenging the standards the agency is applying.

[00:25:33] Speaker 01:
Here, the complaint, in three separate counts, challenges the standard the agency is applying.

[00:25:41] Speaker 01:
It's exactly the same thing.

[00:25:43] Speaker 02:
What you need to keep your case alive is some continuing interest in the outcome of the litigation in a concrete way that relates back to standing.

[00:25:54] Speaker 01:
And why don't they have that?

[00:25:56] Speaker 02:
So they don't have that here because no one applied for a permit.

[00:25:59] Speaker 02:
There is no elephant trophy awaiting import.

[00:26:02] Speaker 01:
If you're wrong on standing.

[00:26:05] Speaker 01:
If they satisfy the futility requirement, or as Judge Edwards suggests, maybe there is an even one, they still have standing, even if they have to get to it.

[00:26:15] Speaker 01:
We're both asking you about mootness, and true, standing and mootness are related to each other, but assuming there's standing, do you see any way to distinguish this case?

[00:26:27] Speaker 02:
Uh, no.

[00:26:29] Speaker 02:
If you found that there was a continuing concrete injury, then... Then you agree this case is dispositive?

[00:26:35] Speaker 02:
It seems to be.

[00:26:35] Speaker 01:
Okay.

[00:26:36] Speaker 01:
So let me ask you about a... Well, did you have other questions on mootness?

[00:26:40] Speaker 01:
I want to go with Fenaro.

[00:26:42] Speaker 01:
Okay.

[00:26:42] Speaker 01:
I want to ask you about another case.

[00:26:45] Speaker 01:
You argue the government says there's no final agency action.

[00:26:48] Speaker 01:
Are you familiar with a Supreme Court case called Hawke's?

[00:26:53] Speaker 01:
versus US Corps of Army Engineers, which was decided after the briefing in this case?

[00:26:57] Speaker 02:
No, not.

[00:26:59] Speaker 01:
All right.

[00:27:01] Speaker ?:
OK.

[00:27:02] Speaker 01:
I don't have any other questions.

[00:27:05] Speaker 02:
Well, perhaps we should talk about final agency action just to wrap up.

[00:27:10] Speaker 01:
Well, then maybe I better tell you about Hawks.

[00:27:14] Speaker 01:
OK.

[00:27:14] Speaker 01:
Hawks says it came after this.

[00:27:15] Speaker 01:
I'm sort of surprised that the appellant didn't file a 28-J letter on this case.

[00:27:23] Speaker 01:
It says the possibility that an agency may revise a conclusion based on new information is a common characteristic of agency action and does not make an otherwise final decision non-final.

[00:27:42] Speaker 01:
I mean, you know, I realize you're at a disadvantage, you don't know the case, but to be honest, I don't see why that case isn't as dispositive as the other case I mentioned here.

[00:27:54] Speaker 02:
Well, I think I can speak to it.

[00:27:56] Speaker 02:
Sure.

[00:27:57] Speaker 02:
I don't believe that this agency action would be final in the first place.

[00:28:04] Speaker 02:
It's not the consummation of agency decision making.

[00:28:08] Speaker 02:
As a plaintiff even characterized it this morning, it's an underlying finding that has been applied in a permit process where the agency does reach a final decision.

[00:28:20] Speaker 02:
And relatedly, that means it's not the kind of decision from which

[00:28:25] Speaker 02:
rights or obligations are defined or from which legal consequences follow.

[00:28:31] Speaker 02:
Because these findings don't by themselves do anything.

[00:28:34] Speaker 02:
Only the permit does something.

[00:28:37] Speaker 01:
Well, that's what they're suing about.

[00:28:39] Speaker 01:
They're claiming they were denied a permit.

[00:28:43] Speaker 01:
And if we think that their failure to apply for one is excused based on the futility exception, if we assume that's the case,

[00:28:55] Speaker 01:
then why is the agency action not final?

[00:28:59] Speaker 02:
If you truly believe that this is a final agency action and that finality and that futility applies, then I suppose it is final agency action, but we disagree with both of those.

[00:29:10] Speaker 01:
I understand that, but you would agree that if we think there is Article 3 standing, because it would have been futile, that there is final agency action here and the case is not moved, correct?

[00:29:23] Speaker 01:
You agree with both of those?

[00:29:24] Speaker 01:
I suppose so, yes.

[00:29:25] Speaker 01:
Okay, great.

[00:29:26] Speaker 04:
Thank you.

[00:29:27] Speaker 04:
See, I mean, you're painting different pictures of the case, and that's why we're all struggling over it.

[00:29:33] Speaker 04:
Their picture is, this is about a regulatory scheme, which you've changed to our disadvantage.

[00:29:40] Speaker 04:
And your picture is, no, this is just about 2014 permits, which they didn't seek.

[00:29:46] Speaker 04:
And we have the authority.

[00:29:48] Speaker 04:
This is the same process we've always used.

[00:29:50] Speaker 04:
They may think it's a little hard.

[00:29:51] Speaker 04:
I mean, the question is whether they're right.

[00:29:54] Speaker 04:
The regulatory scheme has really changed to their detriment.

[00:29:57] Speaker 02:
Right.

[00:29:57] Speaker 02:
And even in cases where agencies have issued guidance or, let's say, the plaintiffs think that the writing is on the wall about how a permit decision will come out, this court has still said you've got to go through the process and get a final decision.

[00:30:12] Speaker 04:
Some of your guidance cases don't go all the way there, and there are a bunch of guidance cases that say you can call it a guidance, but it's more than a guidance here.

[00:30:19] Speaker 02:
The cases that go against us are ones where the agency has expressed an unequivocal position about what's going to happen.

[00:30:28] Speaker 02:
It's essentially bound itself and applicants or regulated parties.

[00:30:34] Speaker 02:
This is not that kind of case.

[00:30:35] Speaker 04:
Your worst picture is they kept doing it in 15 and 16.

[00:30:40] Speaker 02:
Right, but the agency still has discretion over how it's going to apply these findings.

[00:30:47] Speaker 02:
And that's why it's an invited applicants to some information case.

[00:30:51] Speaker 04:
If they had said what they said, push a little burden on you, but we understand it might be troublesome for you.

[00:30:57] Speaker 04:
So we want to leave it open.

[00:30:59] Speaker 04:
We don't want you to feel anxious about this.

[00:31:02] Speaker 04:
You know, come to us, tell us what you got.

[00:31:04] Speaker 04:
We'd prefer that you bring it, but if you don't, then you're going to win easily on ripers.

[00:31:09] Speaker 04:
But that's not what they did.

[00:31:12] Speaker 02:
Well, I think we're in some gray area between that and an absolutely definitive statement, right?

[00:31:17] Speaker 02:
So I think National Mining Association is probably our closest case, where even if it's clear this is going to be difficult, you've still got to go through the process that exists.

[00:31:29] Speaker 02:
And of course, we have Markham versus Salazar, which is really pretty similar.

[00:31:33] Speaker 02:
I mean, it's another import permit case.

[00:31:36] Speaker 02:
It's quite recent.

[00:31:37] Speaker 02:
And, you know, the plaintiffs there were challenging findings in the context of a permit denial, but they were still making these kinds of broad procedural claims.

[00:31:47] Speaker 02:
This court said that

[00:31:50] Speaker 02:
There, those plaintiffs didn't have a right claim, even though they had already been denied a permit.

[00:31:56] Speaker 01:
You mean national mining?

[00:31:57] Speaker 01:
Is that what you're talking about?

[00:31:58] Speaker 02:
I'm talking about Markham versus Salazar.

[00:32:01] Speaker 02:
Oh.

[00:32:01] Speaker 02:
Plaintiffs didn't have a right claim, even though they had received a permit denial and then started the administrative appeal process.

[00:32:10] Speaker 02:
To me, it would seem absurd to conclude that these plaintiffs have a right claim, where they failed to even start that process.

[00:32:16] Speaker 02:
No way.

[00:32:17] Speaker 04:
Is that the one where the plaintiff

[00:32:21] Speaker 04:
an administrator who had yet to speak?

[00:32:23] Speaker 04:
That's right.

[00:32:23] Speaker 04:
Well, that's a different case.

[00:32:27] Speaker 04:
We were being duped there by the agency as well.

[00:32:30] Speaker 03:
I mean, didn't I write that?

[00:32:32] Speaker 03:
You did.

[00:32:33] Speaker ?:
Yeah.

[00:32:35] Speaker 04:
We were being duped there.

[00:32:36] Speaker 04:
I mean, and we were furious because the agency let it go up when it shouldn't have gone up because there was still an agency administrator who had it and it was working.

[00:32:46] Speaker 04:
That's a very different picture.

[00:32:48] Speaker 02:
Well, I mean, the thing that I take from that is that you held correctly that that wasn't right.

[00:32:54] Speaker 04:
I always tried to.

[00:32:56] Speaker 02:
That wasn't a right claim because there was still administrative process left to get to that.

[00:33:01] Speaker 04:
No, but if you had that here, it wouldn't be right.

[00:33:02] Speaker 04:
That's right.

[00:33:03] Speaker 04:
But they haven't gone to a process.

[00:33:05] Speaker 04:
It's very different looking than Markham.

[00:33:07] Speaker 02:
They have completely refused to engage in the process that exists.

[00:33:10] Speaker 04:
And the question is if you can challenge a regulation because the scheme is now different and very burdensome and it would be futile.

[00:33:17] Speaker 04:
You have standing and it's not, you know, you got it.

[00:33:20] Speaker 04:
You understand our concerns?

[00:33:22] Speaker 02:
I do.

[00:33:23] Speaker 02:
See my time is up.

[00:33:24] Speaker 02:
All right.

[00:33:26] Speaker 02:
Thank you.

[00:33:33] Speaker 03:
I just want to make a few points.

[00:33:36] Speaker 03:
First, I want to point out that the hunters not going to Tanzania and hunt in 2014, 2015 is exactly what the Fish and Wildlife Service wanted when they announced these new findings.

[00:33:50] Speaker 03:
And Markham is distinguishable for many reasons, but including, in that case, they were not challenging underlying past final agency action.

[00:33:59] Speaker 03:
They were challenging that the decision itself was arbitrary and capricious, and that is something that could have been resolved in that appeal to the director, which had not finalized yet.

[00:34:12] Speaker 03:
Our futility is in both showing the facts needed to overcome these negative findings and in changing the two underlying past final agency actions.

[00:34:22] Speaker 03:
Neither one of those were going to change.

[00:34:24] Speaker 03:
We're not going to be resolved in the permit process.

[00:34:27] Speaker 03:
We agree the Defenders of Wildlife case is totally on point and addresses standing in mootness.

[00:34:34] Speaker 03:
The Hawkes case is important because it shows that even in that case, it was a jurisdictional determination about waters in the United States

[00:34:42] Speaker 03:
It was a very early part of the whole wetlands permitting process.

[00:34:47] Speaker 03:
But nonetheless, the Supreme Court determined it was sufficiently final because it affected, it hurt those permit applicants early in that process and increased their regulatory burden.

[00:35:01] Speaker 01:
And finally, as far as guidance not being final... You know, it would have been helpful if you had filed a 28-J letter on that because then the government would have known you planned to rely on it.

[00:35:12] Speaker 03:
Yeah, I agree.

[00:35:13] Speaker 03:
I apologize for that oversight.

[00:35:15] Speaker 03:
We should have.

[00:35:16] Speaker 03:
I didn't recognize the connection at the time.

[00:35:20] Speaker 03:
And finally, regarding guidance mentioned, the Appalachia Power Company case that we cite in our brief is a great example of a guidance document that is sufficiently final and affects the regulatory scheme and burdens on the applicants in that case.

[00:35:37] Speaker 02:
All right.

[00:35:38] Speaker 02:
Thank you.

[00:35:38] Speaker 02:
We'll take the case under advisement.