[00:00:00] Speaker 01: This is our recording of the session. [00:00:03] Speaker 01: Be seated, please. [00:00:06] Speaker 01: Case number 17-5242, Government of the Province of Manitoba, State of Missouri, ex-reel, Dr. D. Harvey, Missouri Attorney General's Office, Appellate. [00:00:16] Speaker 01: This is Ryan Zeke, Secretary, U.S. [00:00:18] Speaker 01: Department of the Interior, at L. Mr. Devine for the APOD, Ms. [00:00:22] Speaker ?: Katsulis for the Appellees. [00:00:25] Speaker 05: Mr. Devine, good afternoon. [00:00:33] Speaker 00: Good afternoon and may it please the court, Joshua Devine, Deputy Solicitor for the State of Missouri. [00:00:39] Speaker 00: The federal government cannot take up to nine and a half billion gallons of water each year from the State of Missouri without Missouri at least having constitutional standing to challenge that taking. [00:00:51] Speaker 00: Missouri has standing for three reasons. [00:00:54] Speaker 00: First, Missouri has standing in its sovereign capacity to bring this suit. [00:00:58] Speaker 00: As states have done for hundreds of years, states routinely sue in their sovereign capacity over matters of allocation or diversion of water. [00:01:08] Speaker 00: As Wright and Miller put it, summarizing the case law, there's no difficulty in recognizing standing to protect sovereign interests in such matters as allocation of state waters. [00:01:18] Speaker 00: The federal defendants do not dispute this. [00:01:20] Speaker 00: What they say instead [00:01:21] Speaker 00: is that we cannot bring a suit in our sovereign capacity, having abandoned it by not discussing this issue in the two-page response to their motion. [00:01:31] Speaker 00: But what they neglect to mention is that they never challenged our ability to bring [00:01:36] Speaker 00: a suit in our sovereign capacity, and for good reason. [00:01:39] Speaker 00: Indeed, nobody discussed this issue because it is legally self-evident. [00:01:44] Speaker 00: As North Dakota says on page 31 of their brief, and as this Court has repeatedly stated, when a theory of standing is legally self-evident, [00:01:52] Speaker 00: Litigants need not brief the issue. [00:01:54] Speaker 00: I point this court to Judge Rogers' opinion in Gunpowder Riverkeeper against FERC. [00:01:59] Speaker 00: That's at 807 F3rd, 278. [00:02:03] Speaker 00: That opinion states that when standing, it's self-evident, legally self-evident, quote, no more is required. [00:02:10] Speaker 00: And the policy behind this is really quite simple. [00:02:13] Speaker 00: This court already deals with complex issues and voluminous briefs and does not need litigants to brief self-evident theories of standing that are borne out in the record. [00:02:23] Speaker 00: And it creates tremendous costs to make them do that. [00:02:25] Speaker 00: And I think this case well illustrates the costs of the rule that the federal defendants are asking this court to adopt. [00:02:32] Speaker 00: So Missouri has been involved in the suit for eight years. [00:02:35] Speaker 00: After eight years of building up the record and litigating this case, and indeed, after the district court had already granted us an injunction, the district court then went to take a laser-like focus on two pages of the record, ignoring the rest of the record that plainly evinced [00:02:52] Speaker 00: this theory of standing to sue and said that because Missouri did not discuss this issue in these single two pages that it could not bring suit in its sovereign capacity. [00:03:03] Speaker 00: Now that's troubling for a number of reasons, but it also doesn't get rid of this case. [00:03:10] Speaker 00: All it does is force litigants like the state of Missouri to refile. [00:03:14] Speaker 00: This is a jurisdictional dismissal. [00:03:16] Speaker 00: As the district court said or held, the statute of limitations did not start tolling or did not start running until 2015. [00:03:23] Speaker 00: It's a six year statute of limitations and a jurisdictional dismissal has no race to decada effect. [00:03:29] Speaker 00: This doesn't even get rid of the case. [00:03:30] Speaker 00: All it does is force litigants like us to re-file again, restarting an eight-year process or longer, just so we can say that we are suing in our sovereign capacity. [00:03:40] Speaker 00: This is exactly the type of theory that this Court has repeatedly said need not be briefed. [00:03:46] Speaker 05: The second reason we have stand… What's your best case for us on that? [00:03:51] Speaker 00: There's the, again, the case by, the opinion by Judge Rogers, gunpowder. [00:03:58] Speaker 00: That's right. [00:03:58] Speaker 00: Sierra Club is the main case and it has been cited and expanded upon by my count four or five, or 40 or 50 times. [00:04:08] Speaker 00: The second reason we have standing to pursue this case is, as we stated on... Well, go ahead. [00:04:14] Speaker 05: I don't think it's as broad as you're arguing it, but if anything... [00:04:19] Speaker 05: It was telling people, if it isn't self-evident, you need to spend a few pages telling us why. [00:04:25] Speaker 00: Yes, and this is a self-evident theory of standard. [00:04:29] Speaker 00: I understand that. [00:04:29] Speaker 00: It is undisputed that the whole idea of this project is to take away water from Missouri for the benefit of some communities in North Dakota. [00:04:37] Speaker 02: It just is a little bit odd to say something self-evident when you're talking about a state injury, because you usually want to know that the state who's asserting the injury, in fact, feels injured. [00:04:49] Speaker 02: Yes, in the way that matters. [00:04:50] Speaker 02: So if you have a proprietary injury, for example, it seems a little bit odd to say, well, you don't ever have to say anything about a proprietary injury in proceedings before a district court. [00:05:01] Speaker 02: And then it can just be affirmed based on a theory of a proprietary injury that was never raised. [00:05:05] Speaker 02: Because you want to be told that there's a proprietary injury that's being suffered. [00:05:09] Speaker 00: A couple of responses to that, Your Honor. [00:05:11] Speaker 00: One is that suing over allocation of water is the core sovereign interest that has been litigated for hundreds of years. [00:05:19] Speaker 00: When there's a dispute over allocation of water, that's usually the capacity in which the state sues. [00:05:25] Speaker 00: And second, we did state this in paragraph eight of our complaint. [00:05:28] Speaker 04: How about in Europe? [00:05:30] Speaker 04: opposition to the motion for summary judgment? [00:05:33] Speaker 00: No, we did not. [00:05:33] Speaker 00: And the reason is because they did not challenge it in their motion for summary judgment. [00:05:38] Speaker 04: Is that the basis on which the district court concluded that there was no other theory urged? [00:05:43] Speaker 00: That is how the district court ruled. [00:05:45] Speaker 00: The federal defendants discussed the parents' pottery issue alone. [00:05:51] Speaker 00: We agree that the parents' pottery issue is not self-evident, which is why we responded to the parents' pottery issue. [00:05:57] Speaker 00: Now the second reason why we have standing to sue is as we stated on page 16 of our reply brief. [00:06:03] Speaker 04: What I'm getting at is that the moving party had to show it was entitled to judgment as a matter of law, right? [00:06:12] Speaker 00: That is correct. [00:06:13] Speaker 04: So the opposing party has to say, no you're not. [00:06:20] Speaker 04: For reason one, and if you lose on that, reason two, if you lose on that, reason three. [00:06:25] Speaker 00: Well, again, the Sierra Club rule is intended to not require you to, we have about 150 pages of briefing on this standing issue alone here. [00:06:34] Speaker 00: It's intended not to create that in the district courts. [00:06:38] Speaker 04: The second reason is to... I think, though, with all due respect, that line of authority is addressing that when you're before the agency, Article 3 doesn't apply. [00:06:52] Speaker 04: so the parties can proceed. [00:06:53] Speaker 04: But by the time you get into an Article III court, [00:06:57] Speaker 04: you may have to say something. [00:06:58] Speaker 04: I thought that's the trusted judge. [00:07:00] Speaker 00: That's not my understanding. [00:07:01] Speaker 04: My understanding is that is... Well, I can tell you, I think that's the way this court has interpreted that. [00:07:06] Speaker 04: I think these... Sierra Club itself says that. [00:07:09] Speaker 00: Yes, I think Sierra Club and many other cases are talking about whether the individual has to brief the standing issue in this court, because this court is usually the first time where they have to assert and prove standing. [00:07:20] Speaker 00: This court has said these self-evident theories of standing need not be briefed. [00:07:24] Speaker 00: Now moving into the second reason we have standing, as we stated on page 16 of our reply brief, the district court has granted us an injunction. [00:07:32] Speaker 00: The Supreme Court case Salazar against Biano, that's page 559 US 700, states that when a party has an injunction, they have standing to sue to enforce that injunction. [00:07:44] Speaker 00: And that's what we've done here. [00:07:46] Speaker 00: This is, again, another very straightforward way why we have standing. [00:07:49] Speaker 00: And the most complicated way why we have standing is that we have standing to bring the suit in our parents' pottery capacity. [00:07:55] Speaker 04: So can I just go back to the district court for a moment so I'm clear? [00:08:00] Speaker 04: The Supreme Court has said on a motion for summary judgment, as I recall, the district court does not have to scan the record to see what the arguments are and who might prevail. [00:08:14] Speaker 04: It's up to the parties to alert the court. [00:08:18] Speaker 04: So there was a complaint. [00:08:20] Speaker 04: then the motion for summary judgment comes in. [00:08:23] Speaker 04: The judge rules on that. [00:08:24] Speaker 04: And looking at those papers says there's no other theory in the case. [00:08:31] Speaker 00: Yes, and I think that what we're discussing is an exception to that ordinary rule. [00:08:34] Speaker 00: We don't dispute that the rule you're stating is in general the rule. [00:08:38] Speaker 04: So in summary judgment, the rule you're asking for would be that while the district court doesn't have to scan the record, [00:08:49] Speaker 04: it does have to take into account whether something is self-evident. [00:08:55] Speaker 00: That's right. [00:08:56] Speaker 00: Exactly. [00:08:57] Speaker 00: Self-evident from the record. [00:08:58] Speaker 00: Again, nobody has ever disputed that Missouri is going to lose billions of gallons of water. [00:09:03] Speaker 04: That's what I'm trying to get at. [00:09:04] Speaker 04: It's the rule you're asking for that the district court has to scan the record. [00:09:09] Speaker 00: No, the district court does not have to necessarily scan the record, but when certain facts are borne out, these facts are borne out in the motions for summary judgment too. [00:09:18] Speaker 00: It is undisputed in those motions for summary judgment that the project will divert billions of gallons of water from the state of Missouri. [00:09:28] Speaker 00: So even if we didn't discuss it specifically on those two pages, we did discuss it throughout. [00:09:33] Speaker 04: So even if that is true, any taking [00:09:39] Speaker 04: whether or not there is any harm to the state is sufficient? [00:09:44] Speaker 00: Oh, the taking of water is itself the primary principal harm to the state. [00:09:49] Speaker 00: Now, there are other derivative effects that we have discussed, but the taking of up to nine and a half billion gallons of water is the principal harm. [00:09:57] Speaker 04: Just suppose hypothetically the state of Missouri says the fact you're taking a bucket of water, it's ours, and we care about it. [00:10:09] Speaker 04: We don't feel injured. [00:10:11] Speaker 00: I have two responses to that, Your Honor. [00:10:13] Speaker 00: One is you're not going to see that nobody's going to spend thousands or hundreds of thousands of dollars suing over a bucket of water. [00:10:19] Speaker 00: And two, case after case, I've recognized that even a trifle of an injury is sufficient to establish injury in fact. [00:10:27] Speaker 00: In that circumstance, maybe it would not be self-evident. [00:10:30] Speaker 04: What's your trifle case? [00:10:32] Speaker 00: National Wildlife Federation against HODL, that's 839F2, 694. [00:10:36] Speaker 00: The Supreme Court has recognized standing when somebody sued over as little as $1.50, for example. [00:10:45] Speaker 00: Now we also have standing to bring suit in our parents' pottery capacity because we fall within a well-recognized exception to the ordinary bar and because the APA itself removes the prudential bar against bringing parents' pottery suits against the federal government. [00:11:00] Speaker 00: So the case law creates a crucial distinction. [00:11:03] Speaker 00: A state cannot bring a parents' pottery suit against the federal government to challenge the constitutionality of an act. [00:11:10] Speaker 00: but it can to enforce a congressional act. [00:11:13] Speaker 00: And the reason is quite simple. [00:11:15] Speaker 00: As the Georgia against Pennsylvania railroad case states, Mellon concerns only the distribution of powers between the state and the national government. [00:11:23] Speaker 00: Here, we're not asserting that we should have more legislative powers than Congress. [00:11:28] Speaker 00: We're in fact trying to seek to vindicate congressional will, and that is the crucial distinction between what Mellon prohibits and what Massachusetts against EPA permits. [00:11:39] Speaker 00: The federal defendants try to distinguish this case [00:11:43] Speaker 00: by saying that, well, Massachusetts against EPA is really just a proprietary interest case. [00:11:48] Speaker 00: But they're confusing the difference between the injury, in fact, and the capacity in which you can sue to vindicate that injury. [00:11:54] Speaker 00: So in Massachusetts against EPA, you have changes in water level, which is exactly what we have here. [00:11:59] Speaker 00: And then the Supreme Court in footnote 17, so the Supreme Court says you can sue in your proprietary interest. [00:12:04] Speaker 00: And then footnote 17 also says you can sue in your parents' patriotic capacity. [00:12:11] Speaker 00: And we've cited more than a dozen cases that have recognized this exception. [00:12:15] Speaker 02: So you don't dispute that in massing EPA, the proprietary interest was at least part of your human understanding. [00:12:21] Speaker 00: We think Massachusetts against EPA said that they could pursue both those capacities for standing. [00:12:27] Speaker 00: And indeed, we've cited more than a dozen cases that have recognized the crucial distinction that we are making here. [00:12:34] Speaker 00: We cited six cases that fall between Mellon and SNAP, including the Supreme Court case. [00:12:39] Speaker 00: We cited five cases that fall between SNAP and Massachusetts against EPA, again, including the Supreme Court case. [00:12:46] Speaker 00: And we cited three cases. [00:12:47] Speaker 00: since Massachusetts against EPA that have expressly held that Massachusetts against EPA rejects the very rule that the federal defendants are arguing for here. [00:12:56] Speaker 00: Really briefly, I'd like to say that the APA [00:13:00] Speaker 00: that the APA also removes the bar to parents-patriary standing because, as many cases have said, when a statute uses terms like any person agreed to may sue, then the statute authorizes statutory standing to the full extent allowed by the Constitution, and the bar against bringing parents-patriary suits is prudential, not constitutional. [00:13:20] Speaker 02: So is that, then your view is that, well, the bar against bringing parents' patriarch seats is only one that applies when a state is bringing the suit as against the federal government. [00:13:28] Speaker 01: Yes. [00:13:28] Speaker 02: That's what we're talking about. [00:13:29] Speaker 02: And so your view is that because of the existence of the APA, as long as, and because the APA accommodates the understanding that a state is a party for APA purposes, then that bar just doesn't apply anymore. [00:13:42] Speaker 00: Right. [00:13:42] Speaker 00: That is the logic of Maryland People's Council, the case society. [00:13:45] Speaker 02: It's just gone, period. [00:13:46] Speaker 02: There's no such thing as the bar anymore. [00:13:47] Speaker 02: Right. [00:13:49] Speaker 02: That's your view. [00:13:52] Speaker 05: All right, uh, this cancel us. [00:14:10] Speaker 06: Good afternoon and may it please the court, Anna Katzelis for the Bureau of Reclamation. [00:14:15] Speaker 06: With me at council table today is Nessa Horwich Coppinger on behalf of the State of North Dakota. [00:14:21] Speaker 06: I will argue for the appellee's full 15 minutes today. [00:14:23] Speaker 06: However, Ms. [00:14:25] Speaker 06: Coppinger is available to answer any questions the court may have for her. [00:14:29] Speaker 06: The Northwest Area Water Supply Project is a decades-old effort to provide a new source of much-needed, high-quality drinking water for approximately 81,000 people in the state of North Dakota. [00:14:41] Speaker 06: It will do so by transferring, on average, .0136 million acre-feet of water, which amounts to less than two one-hundredths of a percent of the Missouri River Main Stem System's total capacity from the Missouri River Basin to the Hudson Bay Basin for delivery. [00:14:59] Speaker 06: The main stem system is the largest reservoir system on the continent with a current capacity of more than 72 million acre feet. [00:15:07] Speaker 06: I'd like to turn first to the state's argument that their standing is self-evident and they had no need to raise this issue before the district court. [00:15:18] Speaker 06: That is flatly wrong. [00:15:20] Speaker 06: It is a plaintiff's burden in every case, regardless of whether their standing is challenged, to establish their standing with the requisite degree of proof required at the successive stage of the litigation. [00:15:34] Speaker 06: When you look at their complaint, the only injury that they alleged is to their citizens. [00:15:39] Speaker 06: They did not allege any injury to a proprietary interest. [00:15:43] Speaker 06: They did not allege that they own land that would be harmed by this. [00:15:47] Speaker 06: It's the only thing that is alleged. [00:15:49] Speaker 06: When we challenge their standing, and we would direct the court to join appendix page 62, which is where we challenge their standing, and also to their response at [00:16:01] Speaker 06: Joint Appendix 73 and 74. [00:16:04] Speaker 06: We argued, as we do here, that the state alleged no harm to a sovereign or a proprietary interest and argued that the harm it alleged to its citizens was insufficient due to the bar on parents' patriotic suits. [00:16:17] Speaker 06: In response, Missouri laid out the three types of interests that a state may pursue [00:16:23] Speaker 06: clarified that it had standing on the basis of quasi-sovereign interests, and argued solely that it can maintain this action against the United States in apparent patriotic capacity. [00:16:34] Speaker 02: Well, maybe it's so self-evident that just mentioning those other two theories means that you didn't have to claim them. [00:16:40] Speaker 06: Well, Your Honor, this comes close to a disavowal of those theories. [00:16:44] Speaker 06: And if I could read, the US Supreme Court has identified three distinct state interests, the evasion of which, and I'm reading from their response, may afford a state standing. [00:16:53] Speaker 06: These state interests are its sovereign interest, its proprietary interest, and its quasi-sovereign or parent's-patriot interest. [00:16:59] Speaker 06: Missouri has standing to bring this lawsuit in its capacity as parent's-patriot under the authority of the U.S. [00:17:05] Speaker 06: Supreme Court Decisions in Georgia v. Pennsylvania Railroad Company in Massachusetts v. EPA. [00:17:11] Speaker 06: They specified, made clear to the District Court that they were only bringing this case in a parent's-patriot capacity. [00:17:20] Speaker 06: And this court has been clear. [00:17:22] Speaker 06: We've cited the Huron case for the fact that the forfeiture rule applies to standing arguments as well as it does to merits arguments, because it is not the province of this court to speculate on an injury that the plaintiff never raised below. [00:17:36] Speaker 06: And clearly, this case is unique in that this state decided, made a litigation choice to pursue only this theory. [00:17:46] Speaker 06: So they have clearly waived, they forfeited the argument that they [00:17:49] Speaker 06: can bring this case in a sovereign capacity. [00:17:53] Speaker 06: And they also forfeited the argument that they can bring it in a proprietary capacity. [00:17:58] Speaker 02: So can we just talk for a minute about the theory that even you think that they did bring, which is the parent's patria I want. [00:18:03] Speaker 02: So there's a footnote, as you know well, in Mass VEPA that is all about a state bringing an action in a parent's patria capacity where the federal government is the defendant. [00:18:18] Speaker 02: If that's what that footnote's all about, let's just imagine that it's not a footnote, it's in the text. [00:18:23] Speaker 02: It's in the body of the opinion. [00:18:24] Speaker 02: There's a great deal of discussion about the possibility of a suit that looks like this one. [00:18:29] Speaker 02: Why doesn't that mean that what was going on in Mass V.U.P.A. [00:18:33] Speaker 02: is there were two legs for standing? [00:18:35] Speaker 02: One is the parents pass-drag one, and the other one is the proprietary one. [00:18:38] Speaker 02: Everybody focuses exclusively on the proprietary one, and I understand why you're doing that. [00:18:42] Speaker 02: But it's just to the exclusion of an existence of a lengthy discussion of two meaty paragraphs and a lead-in to that discussion beforehand, where the court says that Mass does, in fact, on a great deal of the territory only reinforces the conclusion, harkening back to the parent's patrii one, which suggested the parent's patrii theory was doing some work. [00:19:06] Speaker 02: So those two parts of Mass v. EPA that indicate that the parent's patrii theory [00:19:11] Speaker 02: was actually doing work to the court. [00:19:14] Speaker 06: It's the Massachusetts v. EPA. [00:19:18] Speaker 06: This court interpreted the decision and I think explained it very well in Center for Biological Diversity, which we've cited in our brief. [00:19:25] Speaker 06: But certainly, three things are happening there. [00:19:29] Speaker 06: The court afforded special solicitude to the state due to the fact that it was a state. [00:19:33] Speaker 06: And as you mentioned, it has these sovereign interests. [00:19:36] Speaker 06: Its discussion there really sounds like it's talking about sovereign interests. [00:19:41] Speaker 06: interest in its territory, and also the procedural right in the Clean Air Act to petition for review, and then also the injury. [00:19:52] Speaker 06: I think what's difficult, and when you look at all of these cases, we have found no case. [00:19:57] Speaker 06: None of the cases they cite have dealt with a scenario in which a state asserted only a quasi-sovereign interest. [00:20:05] Speaker 06: This is highly unusual. [00:20:06] Speaker 06: And the only circumstance where we found that a court has dealt with it is in this Center for Biological Diversity case where Point Hope alleged only that it was suing on behalf of its members. [00:20:19] Speaker 06: So I think that's an element. [00:20:21] Speaker 02: What about the Maryland People's Council? [00:20:22] Speaker 02: Our decision in the Maryland case, that's not one? [00:20:26] Speaker 06: Well, those are, I mean, we're talking about, so I was meaning post Massachusetts versus EPA, where you have this, because I think what's, it's hard to unpack that footnote, Your Honor, and it's, you know, [00:20:40] Speaker 06: It's not solely, it's clearly not solely an interest in a parent's patriotic capacity. [00:20:45] Speaker 06: The court goes on about the nature of the injury to the state, the fact that the state owns coastal land, that it operates advantageously. [00:20:52] Speaker 02: It does, but the way that footnote starts is in response to the Chief Justice's argument that the court was misapplying Georgia. [00:21:00] Speaker 02: Georgia was Tennessee copper, and it would have been easy to respond to that by saying, [00:21:04] Speaker 02: I don't know why the Chief Justice is fixated on this because there's a proprietary interest here that gives rights to standing. [00:21:10] Speaker 02: That would have been easy, and then that would have been completely on all fours with everything you're saying, and this would be an open and check case. [00:21:17] Speaker 05: I think it did say it, didn't it? [00:21:18] Speaker 05: The very last thing in that footnote is it rather seeks to assert its rights under the act. [00:21:26] Speaker 05: And unless its modifies something other than the state itself, [00:21:33] Speaker 06: That's how I read it. [00:21:34] Speaker 06: That's correct, Judge Henderson. [00:21:36] Speaker 06: You're correct on that point. [00:21:37] Speaker 06: And this court made that point exactly in Center for Biological Diversity. [00:21:41] Speaker 06: What the Supreme Court is finding here is that the state was seeking to assert its rights and not insist. [00:21:47] Speaker 02: But then the next sentence, the parenthetical after Nebraska versus Wyoming, says holding the Wyoming had standing to bring a clause claiming it's the United States to vindicate its quasi-sovereign interests. [00:22:00] Speaker 02: Is your position that when it says, it's rights under federal law, it's to the exclusion of quasi-sovereign interest that it's actually talking about proprietary interest in that footnote? [00:22:12] Speaker 06: It's a confusing footnote. [00:22:13] Speaker 02: That may be how you understand it, and that is an interpretation. [00:22:16] Speaker 06: Well, it's a confusing footnote, but I think that there's also the fact that this court has interpreted that footnote, and this court has interpreted that language in CBD. [00:22:26] Speaker 06: And we direct the court to that, because they did talk about, CBD talks about that, [00:22:31] Speaker 06: fact, if I can quote from it. [00:22:35] Speaker 06: I'm at page 476 of the opinion. [00:22:43] Speaker 06: The court noted further that it was critical that Massachusetts sought to assert its own rights as a state under the Clean Air Act and was not seeking to protect the rights of its citizens under the Clean Air Act. [00:22:52] Speaker 06: So that's how this court has interpreted that footnote. [00:22:56] Speaker 06: And I think that, again, and even [00:22:59] Speaker 06: unpacking that. [00:23:00] Speaker 06: You don't need to unpack that footnote and decide exactly what it means. [00:23:04] Speaker 06: It's very hard to decide because this case is distinguishable readily from Massachusetts versus EPA because there is no interest asserted and there is no injury proven to the state's sovereign or proprietary interests. [00:23:22] Speaker 06: And again, we have looked at all of the cases. [00:23:25] Speaker 02: I'm not sure I understand that because I've [00:23:28] Speaker 02: It's the quasi-sovereign interest that would matter if you thought that Matsvi E.P.A. [00:23:32] Speaker 02: allowed for standing based on quasi-sovereign interests, right, in a parent's patriarchy. [00:23:37] Speaker 06: I don't think that, as I just, this court hasn't interpreted it that way. [00:23:41] Speaker 02: Right, so if you went on that, then we'd... Correct. [00:23:45] Speaker 02: Then there could be a separate theory of standing which is based on proprietary interests and sovereign interests as distinguished from quasi-sovereign slash... Right. [00:23:55] Speaker 02: Parents' Patriot interest, that I get. [00:23:56] Speaker 06: But I think if I could step back, perhaps if I misspoke. [00:24:00] Speaker 06: But Massachusetts versus EPA is a complicated opinion. [00:24:04] Speaker 06: And it's based on the unique circumstances there. [00:24:06] Speaker 06: And the unique circumstances included the fact of an assertion of a proprietary injury to the state. [00:24:13] Speaker 06: You don't have that here. [00:24:15] Speaker 06: And so this case is distinguishable easily from Massachusetts versus EPA. [00:24:19] Speaker 06: Now, this court does, on the Parents' Patriot question, have decades of clear precedent. [00:24:25] Speaker 06: So it is a narrow exception. [00:24:27] Speaker 06: The idea that it is just generally available in all APA cases is plainly inconsistent with this court's very clear law. [00:24:34] Speaker 06: So, you know, Maryland People's Council is the only case in which this court found that Congress had abrogated the bar on suits against the United States. [00:24:43] Speaker 06: And, of course, that isn't... These cases are in the context of challenges to federal compliance with the law, not to challenges to federal law itself. [00:24:53] Speaker 06: And so, of course, in the Natural Gas Act, [00:24:55] Speaker 06: the court found that Congress had specifically provided for states to appear before FERC in their parents' patriotic capacity, and then to sue FERC to provide judicial review in a parents' patriotic capacity. [00:25:08] Speaker 06: And its stress that it's holding was a narrow one. [00:25:10] Speaker 06: This court has, in 2001 in Service Employees Union, which we cite, the court has reiterated that the parents' patriotic doctrine is a narrow doctrine. [00:25:19] Speaker 06: It is a narrow, prudential doctrine. [00:25:21] Speaker 02: I just want to make sure that conceptually I'm understanding [00:25:24] Speaker 02: where you are with your argument. [00:25:26] Speaker 02: So even if we thought the Maryland People's Council should be best read in the way that you're reading it, then Mass VEPA comes along afterwards. [00:25:34] Speaker 02: Mass VEPA comes along afterwards, and one reading of Mass VEPA is the one that you have, which is that, yeah, there's a little bit of noise about parents' patriarchy standing in a footnote, but really the opinion is about proprietary interests as the linchpin for standing. [00:25:48] Speaker 02: and what really mattered in Mass VEPA is it wasn't just based on parents' patronized standing, there was also an assertion of a proprietary interest, and a proprietary interest was really doing the work there. [00:25:56] Speaker 02: That's correct, Your Honor. [00:25:57] Speaker 06: That is how this Court has interpreted it. [00:25:59] Speaker 06: Again, in CBD, we have a clear interpretation of that opinion. [00:26:03] Speaker 02: And I just want to make sure I understand that. [00:26:05] Speaker 02: So if that is a reading of Mass VEPA, and I'm not saying I don't agree with that reading, I'm just saying that suppose, it seems to me that there's another argument, which is that the alternate reading of Mass VEPA is [00:26:14] Speaker 02: that there was also a parent's patria interest asserted, which you agree with, and that that assertion did some work for standing purposes. [00:26:22] Speaker 02: If one were to read massive EPA that way, I'm not saying that's the way I read it, I know that's the way you don't, I know that's not the way you read it, if one were to read it that way though, then Missouri would have standing here. [00:26:32] Speaker 06: No. [00:26:33] Speaker 06: I mean, Your Honor, even if it did some work, it didn't do enough work to get them over the hurdle. [00:26:39] Speaker 02: And what are they missing? [00:26:41] Speaker 02: What do they need to get over the hurdle then? [00:26:43] Speaker 06: Well, there's a separate problem here, right? [00:26:45] Speaker 06: And the Massachusetts versus EPA goes through that their submission satisfied the most rigorous [00:26:52] Speaker 06: standards. [00:26:54] Speaker 06: You had uncontroverted affidavits that their land was being swallowed. [00:26:59] Speaker 06: The state of Missouri provided no declarations, Your Honor. [00:27:02] Speaker 06: They cited to their complaint, which alleges only a parent's patriae injury, they provided no declarations. [00:27:08] Speaker 06: They've identified nothing in the record. [00:27:10] Speaker 06: that supports their claim of injury. [00:27:13] Speaker 06: And that would be insufficient in any case, but particularly here where the record shows that this is going to have a de minimis impact on water supply on all of these. [00:27:24] Speaker 04: I do refer to the Fish and Wildlife Service report and one of the other reports that's in the record as indicating water is going to be taken from Missouri. [00:27:37] Speaker 06: No case holds, Your Honor, very clearly that a mere diversion is enough. [00:27:42] Speaker 06: Two points. [00:27:43] Speaker 06: Clearly, the Supreme Court has clearly rejected the argument that a procedural injury alone is enough. [00:27:48] Speaker 06: That's in Lujan, recognized by this court in Benson. [00:27:52] Speaker 06: And also, they've cited, for example, some cases by Florida and Alabama suing over diversions. [00:28:01] Speaker 06: Those cases involve a diversion of nearly a quarter of a reservoir storage for one, but there is a finding of standing. [00:28:08] Speaker 06: But in no case in this court is standing sort of assumed or presumed. [00:28:12] Speaker 06: There is a finding of an injury. [00:28:14] Speaker 06: It's not always clear what the basis is, but there's an injury in all cases. [00:28:18] Speaker 04: So without getting into the dispute about gallons versus volume, it's not a trifle. [00:28:30] Speaker 04: from Missouri's point of view. [00:28:33] Speaker 06: Well, Missouri didn't make that argument, Your Honor. [00:28:36] Speaker 06: I mean, Missouri didn't make any argument. [00:28:38] Speaker 04: Missouri says the whole program is designed to take water from Missouri to give it to rural North Dakota. [00:28:47] Speaker 04: Well, they're multiple. [00:28:48] Speaker 04: No, I'm just pressing it here. [00:28:49] Speaker 04: Isn't it obvious that it's interested in that water? [00:28:57] Speaker 04: is being adversely affected. [00:28:59] Speaker 06: No, it's not obvious, Your Honor. [00:29:01] Speaker 06: Why? [00:29:01] Speaker 06: If it were obvious, we wouldn't have a district court decision finding a lack of standing. [00:29:05] Speaker 06: Their standing was challenged and no response. [00:29:08] Speaker 04: No, it's not. [00:29:09] Speaker 04: Well, it's not. [00:29:09] Speaker 04: The district court, you know, may be in error. [00:29:13] Speaker 04: That's the argument here. [00:29:15] Speaker 06: Well, but that doesn't, I mean, I think to make the point, the cases where standing might be self-evident, Your Honor, I mean, largely those are in a petition for review context where it's the first briefing in this court, but certainly where a litigant's standing is challenged at the summary judgment stage, [00:29:31] Speaker 06: That litigant has an obligation to establish by evidence what the injury is. [00:29:37] Speaker 06: A diversion in and of itself is not an injury. [00:29:45] Speaker 06: Well, Benson is that, you know, they have to meet an injury in fact for purposes of a NEPA claim, which is, you know, the plaintiff must demonstrate that the omission or insufficiency of an EIS may cause the injury to overlook the creation of a demonstrable risk. [00:30:01] Speaker 03: So you're back to my hypothetical encounter. [00:30:04] Speaker 03: It's only a bucket. [00:30:05] Speaker 03: There's no injury. [00:30:07] Speaker 06: I mean, Benson requires a serious environmental injury, Your Honor, but we don't even have [00:30:14] Speaker 06: I mean, there needs to be some indication that the diversion will cause a serious environmental harm to the plaintiff. [00:30:22] Speaker 06: There is no case supporting the proposition that a mere diversion of water, the thing that's absent there is the harm. [00:30:32] Speaker 02: You made that argument in your brief, that even if Mass. [00:30:38] Speaker 02: EPA has a parent's patriotic theory, that they didn't do enough work in their affidavits? [00:30:41] Speaker 06: Absolutely, we made that argument in our brief, yes. [00:30:44] Speaker 06: We've absolutely made that argument. [00:30:47] Speaker 06: I mean, briefly, Your Honor, they've made this argument for the first time in their reply brief and focused on it at this court, but somehow the existence of an injunction [00:30:56] Speaker 06: gives them standing. [00:30:58] Speaker 06: That has been forfeited. [00:30:59] Speaker 06: They did not raise it properly. [00:31:03] Speaker 06: In the reply brief, they looked at one of the state versus state cases where standing wasn't challenged. [00:31:10] Speaker 06: So a lot of times, of course, if standing isn't raised or challenged, it's clearly not persuasive. [00:31:16] Speaker 06: They've also made the point, I'd like to briefly address, that it would be pointless for the court to affirm because they could just file suit again. [00:31:24] Speaker 06: And that is wrong because the issue preclusion [00:31:30] Speaker 06: We can cite the court to National Association of Home Builders versus EBA, but issue a preclusion of prize to standing, subject to a narrow exception in the event a material change occurred [00:31:42] Speaker 06: after the district court's dismissal that would cure the jurisdictional defect. [00:31:48] Speaker 06: Litigants are not permitted to re-litigate jurisdictional issues based on facts that existed before the original dismissal, because that would undermine the conclusive effect of the district court's judgment. [00:31:59] Speaker 06: So I think they're wrong on that point as well. [00:32:02] Speaker 06: But we certainly have made, you know, there are multiple problems with their standing theory, Judge Srinivasan. [00:32:08] Speaker 06: One, you know, no case that we have found [00:32:11] Speaker 06: you know, has held, you know, that since Mass VPA that we found that that case stands for the proposition that a parent's [00:32:21] Speaker 06: injury in and of itself is sufficient. [00:32:23] Speaker 06: There's no case finding that. [00:32:26] Speaker 06: This court's long-standing precedent is very clear. [00:32:29] Speaker 06: It's a very narrow exception, and there's no reason to broaden it here. [00:32:33] Speaker 06: Massachusetts versus EPA doesn't support this conclusion. [00:32:38] Speaker 06: The APA is a very broad statute, and it doesn't support this conclusion either. [00:32:43] Speaker 06: And then even beyond the problems with their theory, they simply have not met their burden. [00:32:49] Speaker 06: I mean, patently have not met their burden. [00:32:51] Speaker 06: They did not raise injuries to sovereign or proprietary interests in the district court. [00:32:58] Speaker 06: And they pointed it to their complaint, which is just a bare allegation of harm to their citizens that is not explained. [00:33:05] Speaker 06: And that is insufficient under this court's law anyway to get about it. [00:33:10] Speaker 05: Thank you. [00:33:10] Speaker 05: Thank you. [00:33:11] Speaker 05: Does Mr. Devine have any time? [00:33:15] Speaker 05: Okay. [00:33:19] Speaker 00: May it please the court. [00:33:20] Speaker 00: There seems to be some confusion over what a quasi-sovereign interest is. [00:33:24] Speaker 00: When the state has a quasi-sovereign interest, it has its own independent interest in both the health and welfare of the citizens and in securing for their citizens compliance with federal law. [00:33:36] Speaker 00: So when reclamation, as the District Court found, violates NEPA, then the citizens have their own interest in that. [00:33:43] Speaker 00: But the state also has its interest in securing for citizens compliance with federal law. [00:33:48] Speaker 00: And on top of that, the state plainly has its own interest in not having a massive diversion of water. [00:33:55] Speaker 00: They try to understate the scope of this. [00:33:57] Speaker 00: But in North Dakota's briefing, they say that this is necessary to their, quote, way of life. [00:34:02] Speaker 00: And that will bring water to 80,000 different people. [00:34:05] Speaker 00: A couple other things. [00:34:07] Speaker 00: Center for Biological Diversity does not weigh against us. [00:34:11] Speaker 00: In fact, it weighs in favor of us. [00:34:14] Speaker 00: On page 477 of that opinion, the court recognizes that the bar against parent's-patriot suit is not a categorical bar. [00:34:23] Speaker 00: It is a quote, general rule. [00:34:25] Speaker 00: And then in the same paragraph, they recognize that Massachusetts against EPA was a parent's-patriot suit. [00:34:31] Speaker 00: It says that Massachusetts was allowed to sue to vindicate its quasi-sovereign interests against the EPA. [00:34:38] Speaker 00: Moreover, the problem with the tribe of Point Hope was not that this rule doesn't exist, but that they hadn't identified any particularized injury. [00:34:51] Speaker 00: Their injury was entirely generalizable. [00:34:54] Speaker 00: The only harm to any physical land that they asserted was harm to the outer continental shelf. [00:34:59] Speaker 00: which is federal land, not tribal land. [00:35:02] Speaker 00: Here we have asserted, and in fact is undisputed and admitted by the other side, that this will divert billions of gallons of water every year from Missouri through eternity, essentially. [00:35:16] Speaker 00: As for the injunction argument, although we did discuss that for the first time in our reply brief, we stated that in response to the argument that they made in their response brief trying to distinguish Nebraska against Wyoming. [00:35:31] Speaker 00: is a case where the US Supreme Court held that a state could bring a parent's pottery suit against the federal government. [00:35:37] Speaker 00: They try to say it's not, but twice the Supreme Court has reiterated and recognized the case as a parent's pottery case. [00:35:44] Speaker 00: That's in Massachusetts against EPA, footnote 17, and in the Arizona State Legislature case, footnote 10. [00:35:51] Speaker 05: But you need to wind it up. [00:35:53] Speaker 00: Yes. [00:35:54] Speaker 00: So I've articulated four different ways why this court should reverse [00:35:59] Speaker 00: Three of those don't even require this court to address the Massachusetts against EPA issue. [00:36:03] Speaker 00: Thank you, Your Honors.