[00:00:02] Speaker 01: Case number 19-5015, American and LGBT section society, et al. [00:00:08] Speaker ?: balance versus United States [00:00:46] Speaker 02: Thank you, Your Honors, and may it please the Court. [00:00:48] Speaker 02: I'm Leo Cosas, and I represent the Appellates. [00:00:51] Speaker 02: The Animal Welfare Act requires the Secretary to promulgate regulations that govern the humane handling, care, and treatment of animals. [00:00:58] Speaker 02: Everyone agrees that since 2004, birds not bred for use in research have been considered animals under the Act. [00:01:05] Speaker 02: Everyone also agrees that since 2004, there have never been regulations, general or otherwise, that govern the handling and care of birds. [00:01:14] Speaker 02: The appellants brought straight-forward APA claims to force the Secretary to comply with his statutory duty. [00:01:20] Speaker 00: Can you address standing for a moment before you get into the merits? [00:01:24] Speaker 00: In particular, how the activities that the vivisection society identifies are different from [00:01:32] Speaker 00: the activities that it would be engaged in if USDA had regulated as you urge. [00:01:39] Speaker 02: Sure. [00:01:39] Speaker 02: So one of the harms is the same harm as in PETA. [00:01:42] Speaker 02: It's the lack of information that the agency's not collecting. [00:01:45] Speaker 02: The AAVS relies on that information to [00:01:48] Speaker 02: both informants members and the public about BIRB treatment. [00:01:51] Speaker 00: Can you be a little bit more specific about what kinds of information you're talking about? [00:01:54] Speaker 02: Sure, so the court and Peter flagged the inspection reports and the other data that it would collect about BIRB mistreatment because if you go to our brief the GAO report we cite [00:02:03] Speaker 02: The agencies telling people don't report anything about birds to us, so we have no data or inspection reports to pull from, and that was what the appellants in PETA alleged as well. [00:02:13] Speaker 02: That's information we lack. [00:02:14] Speaker 02: I want to separately also talk about the diversion of resources point. [00:02:19] Speaker 02: The AABS is focused on developing alternatives to using animals and testing. [00:02:23] Speaker 02: We can't do that as fully as we want to, because we're diverting resources to develop standards and guidelines for how to care and handle birds that the Secretary should have developed some time ago. [00:02:34] Speaker 02: So those are the same harms, I think, that the appellants in PETA alleged, the same statute there and the same defendant, and we think we have standing for the same reason. [00:02:42] Speaker 00: So if Judge Millett's view prevailed, you would not have standing. [00:02:48] Speaker 00: I mean, I realize she wrote separately, and it's not the law of our court, but do you have a theory under which it would not even run into the objection that she raises? [00:02:58] Speaker 02: Sure. [00:02:58] Speaker 02: So I think if you look to Havens itself, Havens says that this conduct that can cause a drain on resources to your agency, if you have to spend money to counteract someone else's unlawful conduct, Havens unanimously from the Supreme Court said that that would give rise to standing with the money spent to counteract bad acts by someone else. [00:03:17] Speaker 02: And I think under that reasoning, we would prevail here, too. [00:03:20] Speaker 02: I know the judgment would offer an opinion as to why Havens might be distinguishable, but I think if you read Havens, there's only a few sentences where they say that the third party organization there, which was called home, they had standing because the racial steering practices of the defendant indirectly caused that third party to spend their resources to counter those practices. [00:03:38] Speaker 02: And I think we're in the same position. [00:03:39] Speaker 00: Chief Augustin was saying, you know, if you're seeking information, [00:03:43] Speaker 00: And then you want to turn around and give it to prosecuting authorities. [00:03:46] Speaker 00: You said it's like, you know, asking the police to report to you so that you can then report to the police. [00:03:51] Speaker 00: And what's your response to that? [00:03:52] Speaker 02: Sure. [00:03:52] Speaker 02: So we're not interested in the prosecution or non-prosecution of another. [00:03:56] Speaker 02: I think the informational injury here is the same as in PETA. [00:03:58] Speaker 02: The agency doesn't have data collects, and we need that data both to inform our members and the public about how many birds are being bred for use in research or used in research, how birds are being treated in research. [00:04:09] Speaker 02: That's all information we need to structure our priorities and to continue our mission, and we don't have that information without the agency's regulations. [00:04:17] Speaker 02: I do want to be, sorry. [00:04:19] Speaker 04: No, you finish your sentence. [00:04:20] Speaker 02: I was just going to transition. [00:04:21] Speaker 02: I do want to be clear. [00:04:22] Speaker 02: I think while we have standing for the same reasons as in PETA, PETA does not control on the merits because of it. [00:04:27] Speaker 04: Well, before you get to that, I realize only one of your clients needs standing. [00:04:33] Speaker 04: Do you think? [00:04:35] Speaker 04: The Avian Welfare Coalition is also controlled by PETA, or is that a different theory? [00:04:41] Speaker 02: I do think it's the same, Your Honor. [00:04:42] Speaker 02: I think the AWC is special because it suffers its horn more acutely than PETA, because the AWC is really bird specific, whereas PETA is more of a general animal organization. [00:04:51] Speaker 02: But the AWC diverted resources just like PETA did. [00:04:55] Speaker 02: The AWC has had to spend time developing these guidelines that the agency hasn't, and we've had to monitor state and local laws. [00:05:01] Speaker 02: to try and find ways to report for mistreatment that we wouldn't have to do if the agency had these regulations, it wasn't forcing. [00:05:08] Speaker 02: So I think both my clients have standing for the same reasons as the court said in PETA, but I do want to be clear PETA decision on the merits doesn't control because the appellants there abandoned their claim of unreasonable delay. [00:05:19] Speaker 02: And I think this court's opinion quite carefully couched its holding by saying we really don't have the power to order the USDA to act. [00:05:25] Speaker 02: I think the language is, quote, at least in light of PETA's abandonment of its claim of unreasonable delay. [00:05:30] Speaker 00: Do you have any idea why PETA abandoned its claim in that case of unreasonable delay? [00:05:34] Speaker 02: I don't, Your Honor. [00:05:36] Speaker 02: We don't cite the oral argument from that case in our brief, but I listened to it in preparation, and Chief Judge Garland engages in a colloquy with PETA's counsel. [00:05:43] Speaker 02: His word was befuddled, and we are too. [00:05:46] Speaker 02: There really was no explanation as to why they abandoned it, and he really, it was a two or three minute exchange where he tried to figure that out, but I think that was central to the Court's opinion. [00:05:54] Speaker 02: We've not abandoned it here. [00:05:56] Speaker 02: It's in our complaint. [00:05:57] Speaker 02: We've pressed it on appeal over and over again. [00:06:00] Speaker 02: PETA also really brought an enforcement claim. [00:06:02] Speaker 02: They said you're not enforcing the general regulations as to birds. [00:06:05] Speaker 02: We don't have an enforcement claim. [00:06:06] Speaker 02: And we're not seeking to force the agency to apply the general rights to birds. [00:06:10] Speaker 02: We really just need something that applies to birds. [00:06:14] Speaker 04: The general regulations apply to BIRDs or you want BIRD-specific regulations. [00:06:19] Speaker 02: I think that's right. [00:06:20] Speaker 02: I mean, we really, it could be any number of things. [00:06:22] Speaker 02: I mean, there's a ton of hypotheticals that could save me. [00:06:25] Speaker 04: Do you agree that if we were to agree with you about that, that that's what the law requires, then the remedy is to remand it, right, to the agency, is to remand it to the district court, right, to determine whether or not [00:06:41] Speaker 04: you can make out a, to determine whether the agency action has been unreasonably delayed. [00:06:49] Speaker 02: I think that's right, you're right, yes. [00:06:52] Speaker 02: We would ask for reversal, because we do think we've stated a claim on merits, and we don't want more. [00:06:56] Speaker 04: I understand that, but yeah. [00:06:59] Speaker 00: But you didn't move for judgment on the pleadings. [00:07:02] Speaker 00: The only issue before us is whether this is district court error in dismissing the case. [00:07:07] Speaker 00: So we don't have a way, for example, legally to say, [00:07:10] Speaker 00: You know, not only are they wrong, you're right, and you're entitled to some relief. [00:07:14] Speaker 00: That has to be remanded. [00:07:16] Speaker 02: I think that's right. [00:07:17] Speaker 02: And I only say reversal just to clarify that I think the Court should make clear we've pled standing and we've pled a claim on the merits, so there shouldn't be any more 12b6 practice, but Judge Pillard, you're right. [00:07:25] Speaker 02: This Court can't enter judgment for us. [00:07:27] Speaker 02: If we prevail on appeal and go back, we can, depending on how this Court frames its opinion, we can explore quick ways to try and get judgment and relief from the agency. [00:07:36] Speaker 02: Judge Taylor, you had mentioned the delay. [00:07:37] Speaker 02: I do think it's notable that [00:07:38] Speaker 02: Really, neither the district court nor the government's trying to defend the 15-year delay is reasonable, and we don't think any case from this court really comes close to ratifying a delay of that long. [00:07:47] Speaker 02: So I think if we get to the point of saying the statute certainly requires something in place for birds, and the record makes clear there's nothing, that 15-year delay is unreasonable. [00:07:55] Speaker 00: Just back on standing on the Avian Welfare Coalition standing, one of the things that the department says is, well, surely [00:08:04] Speaker 00: it would be monitoring state laws whether or not there's also a federal regulation in place. [00:08:12] Speaker 00: And so there wouldn't be actually doing anything more in the absence of the federal regulation. [00:08:17] Speaker 00: And your response to that is? [00:08:18] Speaker 02: Sure, a couple of points. [00:08:19] Speaker 02: One, I think that's contrary to the good faith allegations in our complaint, where we've pled over and over [00:08:24] Speaker 02: we are spending money we otherwise wouldn't spend because of the lack of regulations. [00:08:28] Speaker 02: I think on the point of state and local laws, we wouldn't be spending as much money monitoring them if we had a central agency like the USDA for which to report claims of bird mistreatment. [00:08:39] Speaker 02: I do just want to also quickly note, most states really only have animal cruelty laws. [00:08:43] Speaker 02: They don't have animal handling or care provisions, and those cruelty laws also have pretty significant exceptions that carve out lots of animals from them as well. [00:08:52] Speaker 02: I see him cutting to my rebuttal time. [00:08:53] Speaker 02: I want to just make one more point about the relief we sought. [00:08:56] Speaker 02: The district court's opinion, I think, over and over mischaracterizes the reliefs that we wanted. [00:09:00] Speaker 02: I just want to be clear for this court, we've never sought bird-specific relief, and I think that was a big reason the district court dismissed our claims, and maybe think for that reason along the way. [00:09:08] Speaker 00: We'll give you some rebuttal time, but let me just also ask you, is your arbitrary and capricious claim [00:09:16] Speaker 00: distinct from your unreasonably delayed claim, or is it really another legal framework for pressing the same point? [00:09:22] Speaker 02: I think it's distinct, but I think if we prevail on 7061 ultimately, I think the issue that forms the arbitrary and capricious claim goes away. [00:09:29] Speaker 04: Well, you don't have any final agency action. [00:09:33] Speaker 04: under that claim anyway, right? [00:09:35] Speaker 02: Well, so I disagree, Your Honor. [00:09:36] Speaker 02: I think we've pledded as this informal pattern in practice that the agency has of saying that the USDA just doesn't have jurisdiction over birds, and that's just flatly inconsistent with the agency's 2004 rulemaking that said birds are animals under the act. [00:09:49] Speaker 04: Well, how, in effect then, has that any different than your unreasonably delayed argument? [00:09:54] Speaker 04: Don't they then come together? [00:09:56] Speaker 02: It's slightly different. [00:09:57] Speaker 02: I want to be clear, if this court rules for us on 7061, I think we're very happy in that this claim will sort itself out. [00:10:03] Speaker 02: But there is a slight difference, because even without any rigs for birds, birds are still AWA covered. [00:10:09] Speaker 02: And if you look at paragraphs 96 to 100 of our complaint, we cite several instances where the agencies made flatly inconsistent statements to the public saying birds aren't covered at all. [00:10:17] Speaker 02: And that's the informal pattern of practice that we think is unlawful for the same, and justiciable for the same reasons as in the Hispanic Affairs case that we cite. [00:10:25] Speaker 02: Your honors, I'm happy to answer more questions, but I reserve everything for the models. [00:10:29] Speaker 04: Okay, we'll hear from the government. [00:10:37] Speaker 03: May it please the Court, I'm John Cappell from the Appellate Staff Civil Division Department of Justice, representing the Appalachian USDA and the Secretary. [00:10:47] Speaker 03: At the outset, I would emphasize that the government shares the same concerns that are set forth in Judge Millett's opinion. [00:10:56] Speaker 04: Well, but that was a concurrence. [00:10:58] Speaker 03: That was. [00:10:58] Speaker 03: Well, it was characterized specifically as stupidity. [00:11:02] Speaker 04: But you've got to argue your case based on what the court's opinion there. [00:11:06] Speaker 03: Excuse me? [00:11:07] Speaker 04: You've got to argue your case on the basis of what the court said. [00:11:10] Speaker 04: If you tell me you agree with Judge Paulette, I'm beginning to think maybe you have doubts about your standing argument. [00:11:18] Speaker 03: No, Your Honor, I don't mean to suggest that. [00:11:21] Speaker 03: What we believe is that the PETA [00:11:24] Speaker 03: essentially represented the outer limits of standing doctrine, and that the allegations in this case do not even measure up to those in PETA. [00:11:36] Speaker 03: They are even more vague, general, and nonspecific than the allegations in PETA. [00:11:43] Speaker 03: And in that respect, I would note that the court in PETA did note as part of its analysis [00:11:53] Speaker 03: that the plaintiffs there had specifically alleged economic harm, that it was spent $10,000 [00:12:06] Speaker 03: already, and it anticipated spending $3,000 a year in the future because of the ask. [00:12:11] Speaker 00: But Mr. Cobble, we've never required dollar figures. [00:12:14] Speaker 00: We've never required dollar figures as a basis for standing. [00:12:18] Speaker 03: I know, Your Honor, you have not specifically required dollar figures, but nonetheless, that highlights the difference because here, again, [00:12:29] Speaker 03: In our view it is not sufficient simply to say that because the agency has not done something, the plaintiff [00:12:39] Speaker 03: has expended resources and therefore is injured. [00:12:44] Speaker 04: But they haven't just said that. [00:12:46] Speaker 04: They've explained what they've had to do specifically in terms of activities and that it's required substantial resources. [00:12:54] Speaker 03: Your Honor, I would respectfully disagree. [00:12:57] Speaker 03: I think that they haven't specified, for example, a publication or a part of a publication that they would not have [00:13:09] Speaker 03: done if there were regulations in effect on this subject. [00:13:15] Speaker 00: Well, I don't know. [00:13:16] Speaker 00: On JA 14 as part of the complaint, the Avian Welfare Coalition said it only began producing shelter guides and webinars on handling and care of birds in captivity when it was clear that USDA did not intend to enact regulations. [00:13:30] Speaker 00: So they're trying to step in, at least in the Avian Welfare Coalition's allegations, step in and provide some kind of standards, guidance, information for concerned [00:13:44] Speaker 00: individuals who are dealing with birds. [00:13:48] Speaker 00: So if we were to take that as adequate, on the merits, it's a little unclear to me what the department's position is on the merits. [00:13:58] Speaker 00: Is it the position that the department has discharged its obligation because the act does not refer to all [00:14:11] Speaker 00: animals but only animals and therefore the general regulation with respect to some animals discharges the department's obligation? [00:14:21] Speaker 00: Is that your argument? [00:14:22] Speaker 03: Well, the argument really is that it's not so much the all animals point, it is the point that the statute requires the promulgation of general standards [00:14:37] Speaker 03: with respect to animals, and then specific standards with respect to dogs, exercise of dogs, and the psychological well-being of non-human primates. [00:14:49] Speaker 03: And that that is the universe of required action under the statute. [00:14:54] Speaker 00: Right, and the question, the puzzling thing is if the claim is not that avian-specific regulation is needed and that just some regulation is needed, I'm not sure that I follow what your argument is that actually no regulation is needed with respect to birds. [00:15:16] Speaker 00: I just don't understand actually what the argument is. [00:15:20] Speaker 00: Like if the department had said, okay, animals, [00:15:23] Speaker 00: We're just going to do squirrels. [00:15:25] Speaker 00: And then we see that in the statute, we also specifically have to do dogs and some other things. [00:15:31] Speaker 00: Would that satisfy the department's obligation to regulate with respect to animals because squirrels are among potential animals? [00:15:40] Speaker 03: No, Your Honor. [00:15:41] Speaker 03: I don't believe that that would. [00:15:42] Speaker 03: But I believe that that's distinguishable from this situation where the regulation [00:15:51] Speaker 03: in subpart F, is designed to embrace animals globally, and that was in response to 2143A1's requirement that the agency promulgate such regulations. [00:16:09] Speaker 04: Okay, but let's just get to the core of this. [00:16:11] Speaker 04: I mean, the agency concedes that its general regulations don't cover birds, yet the statute defines animals [00:16:20] Speaker 04: as to include birds not bred for research. [00:16:26] Speaker 04: So birds not bred for research are not being protected by the current system, isn't that right? [00:16:34] Speaker 03: They're currently not being regulated, but at the same time, I would just, if I may. [00:16:42] Speaker 03: Yeah, sure, go ahead. [00:16:45] Speaker 03: What the agency did was in 2004, when it recognized that birds not bred for research are animals covered by the statute, it issued the advance notice of proposed rulemaking in which it said that it believed that the general regulations in subpart F [00:17:07] Speaker 03: were not a good fit, that they were essentially, that it would not be appropriate or adequate to use them with respect to birds. [00:17:16] Speaker 03: And that is why it requested comments with respect to appropriate regulation standards with respect to birds. [00:17:26] Speaker 04: So far all you're saying, you're convincing me I'm right. [00:17:30] Speaker 04: That's what you're saying. [00:17:31] Speaker 04: Even the department realizes it needs regulations of birds not bred for research. [00:17:38] Speaker 04: That's why it issued the advanced notice of proposed rulemaking, right? [00:17:43] Speaker 03: Isn't that right? [00:17:46] Speaker 03: Ultimately, yes. [00:17:47] Speaker 03: Ultimately, the statute covers birds and they are to be regulated. [00:17:56] Speaker 04: And so what's the reason why you agree then that they are to be? [00:18:03] Speaker 04: So your answer to Judge Pillard is [00:18:06] Speaker 04: is no, our position is that birds, that the department does need to protect birds and operate for research, correct? [00:18:16] Speaker 04: Legally obligated to do that, correct? [00:18:21] Speaker 03: Yes, the statute does require, it requires [00:18:27] Speaker 04: Since birds are animals... So then why is it obvious then that we need to remand this to the district court to determine whether that agency action has been unreasonably delayed? [00:18:47] Speaker 03: Because it hasn't done that, right? [00:18:52] Speaker 03: There hasn't been any formal change since the ANPR was issued. [00:19:00] Speaker 04: So I hear you agreeing with me that the department does have a legal obligation to regulate, to protect birds. [00:19:07] Speaker 04: That's number one. [00:19:08] Speaker 04: Number two, it hasn't done it, right? [00:19:11] Speaker 04: And so why isn't the logical conclusion from 1 and 2, 3, which is we need to remand it to determine whether the agency has unreasonably delayed its statutory obligation to protect birds and operate for research? [00:19:27] Speaker 04: What's the matter with that reasoning? [00:19:30] Speaker 03: The problem with that reasoning is that contrary to what the plaintiff asserted... Well, how about what I just said? [00:19:37] Speaker 04: Forget what the plaintiff said. [00:19:38] Speaker 04: Just what I just said. [00:19:40] Speaker 03: As long as the remand would not require the agency to promulgate burden-specific regulations, but would simply recognize... Well, you could still, the government, I suppose, could still argue that 17 years is not an unreasonable delay. [00:19:57] Speaker 04: I mean, you know, maybe you'll convince the district court of that, and then they'll come back up here again. [00:20:02] Speaker 04: But do I hear you agreeing with me that it does have to go back to that determination? [00:20:09] Speaker 03: Well, if that is the way the court views the case, of course, we have taken a different position in our brief. [00:20:16] Speaker 03: And we believe that under SUA, there has not been a failure to take discrete action that the agency is required to take, and that there's also that there has been no final agency action. [00:20:33] Speaker 04: OK, but the final agency action question's separate, even if you're right about that. [00:20:37] Speaker 04: You've got an unreasonable delay claim here, right? [00:20:41] Speaker 03: There is an unreasonable delay claim, Your Honor. [00:20:43] Speaker 03: And the appropriate, again, not waiving our arguments. [00:20:49] Speaker 04: Well, do you want to try, I understand. [00:20:51] Speaker 04: Do you want to try once more to explain, at least Judge Pillard and I both asked this question. [00:20:56] Speaker 04: why it is that you think, your main argument is that the department doesn't have to issue regulations with respect to birds? [00:21:05] Speaker 04: Because that's what you say in your brief. [00:21:07] Speaker 04: And I had the same reaction she did, which is, is your argument that it doesn't have the word all? [00:21:13] Speaker 04: That's what I thought you were arguing also. [00:21:16] Speaker 03: Well, again, the agency [00:21:22] Speaker 03: can still choose even though it suggests that it's skepticism in the ANPRM that the general regulations [00:21:38] Speaker 03: would be appropriate at the same, or it could promulgate birth-specific regulations or simply adapt the general regulation. [00:21:48] Speaker 04: I'm sorry to interrupt, but both of those options are inconsistent with your statement in your brief and here today that the Department doesn't have an obligation. [00:21:56] Speaker 04: You say in your brief, your language is, you say at page 13, this is what you say. [00:22:04] Speaker 04: the statute, quote, simply directs USDA to issue standards for the humane treatment of animals, close quote, then you add the word general. [00:22:14] Speaker 04: That's your argument. [00:22:15] Speaker 03: That is your, and we don't, respectfully, we don't believe that that's inconsistent. [00:22:22] Speaker 03: Our argument is that as a technical legal matter, the agency has complied with [00:22:27] Speaker 03: the statutory requirements by issuing the general standard and by regulating with respect to dogs and non-human primates. [00:22:35] Speaker 03: And that is all that the statute requires. [00:22:41] Speaker 03: It's all the statute requires if we ignore that birds not bred for research are also animals too. [00:22:52] Speaker 03: We recognized that in 2004, yes. [00:22:55] Speaker 03: Okay. [00:22:57] Speaker 03: But it's, again, we did not feel that the agency is obligated to issue bird-specific regulations, which is what the plaintiffs have asked for in this case. [00:23:18] Speaker 04: Well, actually, they haven't asked for it. [00:23:22] Speaker 04: protection of birds either through the general or through a specific? [00:23:26] Speaker 03: Your Honor, I again respectfully question that characterization because what they say in J.A. [00:23:34] Speaker 03: 29 in paragraph 3 of their request for relief, they asked for the relief compelling the USDA to publish for comment in the Federal Register by court order deadline, etc. [00:23:47] Speaker 03: proposed rules that govern the humane handling, care, treatment, and transportation of birds, and then to promulgate such rules. [00:23:55] Speaker 03: And that is a specific request for bird-specific regulations. [00:24:03] Speaker 00: No, no, it's really not. [00:24:04] Speaker 00: I mean, it's kind of amazing that we're talking past each other to this degree, because they've disclaimed a requirement [00:24:12] Speaker 00: of bird-specific regulation. [00:24:14] Speaker 00: They've asked for regulation that covers birds. [00:24:18] Speaker 00: And as far as I read the record, they've been consistent in asking for regulation that covers birds, whether that be in the form of including birds under the general rule [00:24:30] Speaker 00: or in the form of a rule specific for BIRDS. [00:24:34] Speaker 00: Now, if that were, if I'm right in reading it that way, that that's all they're asking for, is something that covers BIRDS, your response that the department is nonetheless in compliance is what? [00:24:49] Speaker 03: Again, it is, that is a technical matter, the agency issued [00:24:57] Speaker 03: promulgated general standards and specific standards where they are required with respect to animals. [00:25:04] Speaker 00: And so it does go back. [00:25:05] Speaker 00: I thought when I asked you at the beginning of argument whether you're resting on the fact that the statute doesn't say all animals and you said, no, you're not resting on that. [00:25:14] Speaker 00: You're not saying that it's adequate to have regulated in the general rule some subset of animals. [00:25:20] Speaker 00: You're not making that argument. [00:25:23] Speaker 00: that the department somehow has discretion to pick and choose among the covered animals, those that warrant regulation. [00:25:32] Speaker 00: That hasn't been your position. [00:25:34] Speaker 00: And it's not your position standing here today. [00:25:36] Speaker 03: That is not what we are arguing. [00:25:39] Speaker 00: Thank you. [00:25:39] Speaker 03: But if there is a remand, [00:25:41] Speaker 03: Again, without waiving the argument that we've made, we would certainly urge the court to make it clear that the agency can regulate as it sees fit, either with respect to the general standards or to issue specific regulations. [00:26:02] Speaker 04: All right, thank you. [00:26:05] Speaker 04: Council has some time left, right? [00:26:07] Speaker 04: No? [00:26:08] Speaker 04: Twenty seconds. [00:26:09] Speaker 04: You can take a whole minute. [00:26:11] Speaker 01: Thank you, Your Honor. [00:26:12] Speaker 01: I appreciate that. [00:26:13] Speaker 01: Just a couple of quick points. [00:26:14] Speaker 01: Judge Pillard, you're exactly right on the bird-specific relief at the end. [00:26:18] Speaker 01: Paragraph 3 does not seek bird-specific regulations. [00:26:20] Speaker 01: We just want something. [00:26:21] Speaker 01: It could be the general regulations or not. [00:26:23] Speaker 01: It sounds like the court has that. [00:26:25] Speaker 02: Jumping back to standing, Judge Pillard, you're right again. [00:26:28] Speaker 02: We don't need to identify a specific dollar figure in our complaint. [00:26:31] Speaker 02: I also just want to note, Pete is not an outlier. [00:26:33] Speaker 02: He built on Havens, Abigail Alliance, and Action Alliance as well. [00:26:37] Speaker 02: My final point is that even with the remand, I just want to be clear that the unreasonable delay point, whether the delay was reasonable, was briefed by us, recited track and other quotes and other cases from this court on delay. [00:26:50] Speaker 02: And I do think that that's really a legal question. [00:26:53] Speaker 02: The 15-year delay is here, track outlines several factors the court looks at. [00:26:57] Speaker 02: I've never seen the case. [00:26:58] Speaker 00: You did not cross-move for judgment on the pleadings. [00:27:02] Speaker 00: And so I'm just wondering, in terms of what relief we could offer, it's possible that under track, the government, had you cross-moved, would have introduced other information about its priorities and information that's relevant to track, but it hasn't done that. [00:27:17] Speaker 00: So you're not arguing that we should make an unreasonable delay. [00:27:22] Speaker 00: Final determination? [00:27:23] Speaker 02: Not a final determination. [00:27:24] Speaker 02: I do think the court should acknowledge that 15 years is not reasonable and no case from this court comes close to that. [00:27:29] Speaker 04: No, that would just be dictum. [00:27:31] Speaker 04: I mean, that wouldn't help you if we sent the issue back to the district court, right? [00:27:36] Speaker 02: Well, it would, and I only make this point practically. [00:27:37] Speaker 04: How could we do that anyway? [00:27:39] Speaker 04: We don't really know what the government's, we don't know what arguments the government might have. [00:27:44] Speaker 02: Well, just to reiterate, we had briefs at that point, and there's never been any case law argument from the government that somehow the 15 years is reasonable. [00:27:50] Speaker 02: But if a remand's coming, then that's fine. [00:27:52] Speaker 02: I do appreciate it, of course. [00:27:54] Speaker 04: Thank you both. [00:27:55] Speaker 04: The case is submitted.