[00:00:00] Speaker 00: Case number 20-5081, American Wild Wars Campaign, Western Watersheds Project et al, the balance, versus Scott de la Vega in his official capacity as Acting Secretary of the Department of the Interior and Director, Bureau of Land Management. [00:00:16] Speaker 00: Ms. [00:00:16] Speaker 00: Lewis for the balance, Mr. Bernie for the appellate. [00:00:21] Speaker 02: Good morning, Ms. [00:00:22] Speaker 02: Lewis. [00:00:23] Speaker 01: Good morning, Your Honor. [00:00:26] Speaker 02: You can proceed. [00:00:28] Speaker 01: May it please the court, Elizabeth Lewis for the plaintiffs. [00:00:33] Speaker 01: Under Ohio Forestry, when an agency implements a land use plan in a way that imminently injures plaintiff's interests, the entirety of that decision is subject to judicial review. [00:00:45] Speaker 01: Accordingly, in this case, when plaintiffs sought review of the decision to remove every single wild horse from the Caliente complex that was made in a land use plan and implemented by a gather decision, they challenged- You're up against a statute of limitations and Ohio didn't have anything to do with a statute of limitations. [00:01:04] Speaker 03: It's all about rights. [00:01:07] Speaker 01: I apologize, Your Honor. [00:01:09] Speaker 01: Could you repeat your question? [00:01:11] Speaker 01: Cutting out a little bit. [00:01:12] Speaker 03: Your problem here is a statute of limitations. [00:01:15] Speaker 03: And the Ohio case is all about ripeness. [00:01:20] Speaker 01: Yes, Your Honor, it is. [00:01:22] Speaker 03: But I don't know why you think it's relevant here. [00:01:26] Speaker 01: Well, one of the prongs of the ripeness inquiry is whether delayed review would cause hardship to the plaintiffs. [00:01:36] Speaker 03: Let's assume your claim is right. [00:01:37] Speaker 03: What do you do about the statute of limitations? [00:01:41] Speaker 01: Well, we chat we timely challenge my clients timely challenged a an implementing decision. [00:01:47] Speaker 03: And the 2018 decision we got review on the merits and the district court. [00:01:54] Speaker 01: Yes, but under the Ohio forestry framework. [00:01:59] Speaker 01: My clients included challenges to the underlying land use plan. [00:02:05] Speaker 01: in that challenge to the implementing decision. [00:02:09] Speaker 03: And without the ability- That was the 2008 plan. [00:02:12] Speaker 03: That's why you're the statute of limitations problem. [00:02:16] Speaker 01: We could not have challenged that plan in 2008. [00:02:19] Speaker 02: Well, you could have challenged it in 2009 when it ripened. [00:02:23] Speaker 02: That's when it ripened. [00:02:25] Speaker 02: And your problem is that, as Judge Ginsburg said, Ohio and all the other cases you cite, none of them are statute of limitations cases. [00:02:36] Speaker 01: So. [00:02:38] Speaker 01: That is true. [00:02:40] Speaker 01: But again, when looking at the ripeness inquiry, when you're looking at whether a delayed review would cause hardship to the plaintiffs. [00:02:51] Speaker 03: How does hardship affect the statute of limitations? [00:02:55] Speaker 03: Are you making an equitable tolling argument? [00:02:57] Speaker 03: I didn't see it. [00:02:58] Speaker 01: No. [00:02:59] Speaker 01: No, Your Honor, we're not. [00:03:01] Speaker 01: But this court has held before that whether [00:03:05] Speaker 01: plaintiffs would be barred from bringing their challenges later, for example, due to a statute of limitations problem, then that is a hardship that the court should take into account. [00:03:17] Speaker 02: What case is that? [00:03:20] Speaker 01: Your Honor, that is Louisiana Environmental Action Network versus Browner. [00:03:26] Speaker 03: And that's a holding, not just a dictum? [00:03:28] Speaker 03: I don't think so. [00:03:30] Speaker 01: I'm sorry? [00:03:32] Speaker 03: Is that the holding or a dictum in that case? [00:03:35] Speaker 01: Um, that is a dictum, but there is other, uh, there are other cases where it is a statute. [00:03:47] Speaker 01: Yes. [00:03:47] Speaker 03: Yes, your honor. [00:03:48] Speaker 03: It's a dictum on the statute of limitations case. [00:03:50] Speaker 03: Okay, go ahead. [00:03:51] Speaker 01: And in Bethlehem Steel Court versus the EPA, this court noted that whether there is sufficient hardship to the parties to warrant our review, the court should determine whether the challenge action will be reviewable in the future. [00:04:06] Speaker 01: If it will not be reviewable later, our review now may be warranted. [00:04:11] Speaker 01: So this court has observed that the inability to bring that claim later is a factor that weighs on [00:04:20] Speaker 01: whether a challenge is right. [00:04:23] Speaker 03: And- Is the Louisiana case cited in your briefs? [00:04:25] Speaker 03: I don't see it, but it might be. [00:04:27] Speaker 01: No, Your Honor, it is not. [00:04:30] Speaker 03: That might've been helpful. [00:04:33] Speaker 03: What is the citation? [00:04:38] Speaker 03: But- What's the citation for the case? [00:04:41] Speaker 01: It is 87 F3rd, 1379. [00:04:43] Speaker 01: Thank you. [00:04:48] Speaker 02: You're welcome. [00:04:50] Speaker 02: Ms. [00:04:50] Speaker 02: Lewis, under your theory, would a challenge to a land use plan ever be time barred as long as the agency keeps engaging in successive implementing actions? [00:05:10] Speaker 02: Well, I think that that would- Would it ever be time barred, regardless of how long those go on, 10 years, 20 years? [00:05:18] Speaker 01: I think that that would depend on [00:05:20] Speaker 01: several factors, including your key to this case was that the agency BLM tiered and incorporated by reference the 2008 management plan. [00:05:33] Speaker 01: And so that subsequent decision, the implementing decision in 2018 relied on the 2008 RMP for its analytical and procedural [00:05:44] Speaker 01: foundation and that is the statutory scheme. [00:05:48] Speaker 02: But that's my question then. [00:05:49] Speaker 02: So as long as the agency, so under your theory, the agency here could every few years initiate another gathering for years and years and years and each one of those would allow you to go back and challenge the 08 plan, right? [00:06:09] Speaker 01: Yes, your honor. [00:06:10] Speaker 02: And in fact, BLM has- What's the purpose of a statute of limitations? [00:06:16] Speaker 01: Well, the statute of limitations. [00:06:21] Speaker 01: So first of all, the statute of limitations would apply to bar out of time challenges to the implementing decision. [00:06:29] Speaker 01: I think that everyone here agrees that plaintiffs could not come in and challenge the 2018 decision in 2030. [00:06:37] Speaker 01: That's no longer [00:06:38] Speaker 01: it's outside the limitations period, it's no longer the operative decision. [00:06:40] Speaker 01: And there are additional, you know, bars to judicial review, including that a plaintiff must have standing. [00:06:50] Speaker 01: But I think that it is also important for the court to balance Congress's interest in providing repose with the statute of limitations with the APA's other goal, which is to ensure that agency action is reviewable and that when a [00:07:08] Speaker 01: plaintiff is injured by the agency's action that they are able to obtain meaningful judicial review of that decision. [00:07:22] Speaker 06: Ms. [00:07:22] Speaker 06: Lewis, your standing depends in part on the Cunningham Declaration. [00:07:26] Speaker 06: She describes her plan to go on a hike in August 2019. [00:07:30] Speaker 06: Do you know if she went on the hike? [00:07:33] Speaker 01: I do not, Your Honor. [00:07:35] Speaker 06: It also talks about her plans to write a book. [00:07:37] Speaker 06: Do you know if she wrote the book? [00:07:40] Speaker 01: I believe that she is still working on it. [00:07:44] Speaker 01: It's important to the court. [00:07:46] Speaker 01: I'm happy to ask her and communicate that back. [00:07:52] Speaker 06: I mean, it may be that you have standing even if her plans were less definite than [00:07:58] Speaker 06: a plan to go on a hike in two weeks and a plan to write a book about the horses that she saw or a book about the area that would include photographs of the horses. [00:08:07] Speaker 06: You certainly, I think, are closer to standing and specific plans than the plaintiffs in Lujan, but it would make it an easier standing case if we could be certain, if there were some subsequent evidence that [00:08:25] Speaker 06: that her specific plans to go on the hike were actually specific plans, and that the plan to write a book was an actual plan to write a book, but it may be that it doesn't matter. [00:08:36] Speaker 01: I know that her plans to write the book are actual plans. [00:08:41] Speaker 01: I think that everybody's travel plans have been a little, made a little bit difficult by not going to the pandemic. [00:08:48] Speaker 06: This was an August 2019 hike, so it would have been six months before the pandemic. [00:08:53] Speaker 06: Again, this may not matter at all, [00:08:56] Speaker 06: You know, Lujan says you can't just say, well, I plan to go on a hike sometime in the future. [00:08:59] Speaker 06: You were more specific than that. [00:09:01] Speaker 06: You said two weeks, which is great in terms of establishing your standing. [00:09:06] Speaker 06: But, you know, if she ended up not going on the hike, maybe that casts some doubt on that. [00:09:14] Speaker 01: Well, even if she didn't go on that hike, she still frequently travels to the area. [00:09:20] Speaker 01: And as she said in her first declaration, she has concrete plans. [00:09:25] Speaker 01: to return and to continue to work on her book. [00:09:28] Speaker 01: Okay. [00:09:29] Speaker 03: I think her standing will have to be measured by the date of the file. [00:09:36] Speaker 03: That's the date of the complaint or, yeah, I think the date of the complaint. [00:09:39] Speaker 03: I'm not mistaken. [00:09:41] Speaker 03: I think we have cases on that. [00:09:45] Speaker 01: Yes. [00:09:46] Speaker 03: Did you hear me, Ms. [00:09:46] Speaker 03: Lewis? [00:09:47] Speaker 01: I apologize. [00:09:48] Speaker 01: Excuse me? [00:09:49] Speaker 03: You're having trouble hearing me. [00:09:50] Speaker 03: I'm not sure why. [00:09:52] Speaker 03: Okay. [00:09:53] Speaker 02: Doug, your voice is, you are difficult to hear. [00:09:57] Speaker 02: I don't know what it is about where you're sitting, but it's difficult to hear you. [00:10:03] Speaker 03: Well, I'll try to just speak loudly then. [00:10:06] Speaker 03: Is that helpful? [00:10:07] Speaker 02: Yes, that's my choice. [00:10:08] Speaker 02: Thank you. [00:10:09] Speaker 06: My apologies, Your Honor. [00:10:11] Speaker 06: Just to follow up on Judge Ginsburg's question, we assess standing at the time the complaint is filed. [00:10:16] Speaker 06: Do we also assess it at every stage of the proceeding or just at the time the complaint is filed? [00:10:23] Speaker 01: Well, plaintiffs had their obligation to demonstrate standing increases with each successive stage of litigation. [00:10:32] Speaker 01: And we put in declarations that demonstrate that our clients have a continuing interest in this area. [00:10:40] Speaker 01: And the district court ended up affirming that we did have standing and that our declarations were sufficient. [00:10:51] Speaker 01: That's all for me. [00:10:54] Speaker 03: Anything else, Doug? [00:10:56] Speaker 03: Actually, I want to take a look at the Browner case. [00:11:00] Speaker 03: So, Ms. [00:11:00] Speaker 03: Lewis, have you got, have you reserved time for rebuttal? [00:11:04] Speaker 01: Yes, Your Honor. [00:11:06] Speaker 03: One minute. [00:11:06] Speaker 03: I may ask you about that when you come back. [00:11:10] Speaker 03: Okay. [00:11:11] Speaker 02: Thank you. [00:11:11] Speaker 01: Thank you. [00:11:12] Speaker 02: Okay. [00:11:13] Speaker 02: Thank you, Ms. [00:11:13] Speaker 02: Lewis. [00:11:13] Speaker 02: We'll hear from the government and give you a little extra time, okay? [00:11:18] Speaker 01: Thank you. [00:11:21] Speaker 04: Good morning. [00:11:23] Speaker 04: May it please the court, Andrew Burney on behalf of APLEs. [00:11:26] Speaker 04: Just to pick up on some of the questions that were just asked, I mean, there's no dispute that plaintiffs could have challenged the 2008 determination. [00:11:32] Speaker 04: In 2009, they commented on both the 2008 management decision and the 2009 gather decision. [00:11:39] Speaker 04: Their standing, I think, in 2009 was no different than it was in 2018. [00:11:44] Speaker 06: Let me ask you about that. [00:11:47] Speaker 06: In a hypothetical case where a plaintiff did not have standing in 2009, let's say did not have standing from 2009 through 2015, could that plaintiff now withstanding challenge the 2008 decision that became ripe in 2009? [00:12:06] Speaker 04: Judge Walker, if it was a situation where the plaintiff didn't have standing because the agency actually hadn't issued an implementing decision, then perhaps. [00:12:19] Speaker 04: I think if it had been a case where the agency had implemented the decision and the plaintiff simply didn't exist from 2009 to 2015 or moved to the area later, I think we would say it should still be brought earlier. [00:12:32] Speaker 04: But I don't think the court necessarily [00:12:34] Speaker 04: I understand the question. [00:12:35] Speaker 04: I don't think the court needs to reach those issues here because there's no dispute that plaintiffs could have brought this challenge in 2009. [00:12:40] Speaker 04: And they're very active in this space and they follow developments concerning it extremely closely. [00:12:45] Speaker 04: And if you look at the record, particularly pages 191 to 195 of the joint appendix, that's the comments on the 2009 gathered decision, you'll see all the comments from plaintiffs and from others [00:12:58] Speaker 04: raising all the same issues they raised here, you know, the idea that BLM is prioritizing cattle over horses and things like that. [00:13:05] Speaker 04: And BLM says over and over again, that is a decision that was made in the 2008 decision and it's not subject to reconsideration here. [00:13:14] Speaker 04: So at that point, it's very clear that this challenge needed to be brought and plaintiffs didn't bring that challenge then. [00:13:20] Speaker 04: And I think under basic principles of timeliness, the suit is now time barred [00:13:23] Speaker 04: And Judge Ginsburg, you're exactly right. [00:13:25] Speaker 04: Ohio forestry is not a case about timeliness. [00:13:29] Speaker 04: It's a case about rightness. [00:13:30] Speaker 04: The case doesn't even mention timeliness. [00:13:33] Speaker 04: I mean, Ohio forestry stands for the proposition that certain decisions in a resource management plan cannot be challenged from the moment of issuance. [00:13:41] Speaker 04: But that is, and the APA provides a very generous six-year statute of limitations where claims can be brought once they become right. [00:13:49] Speaker 04: But that's just worlds apart from the idea that any decision, even years or decades after a decision made in an underlying land use plan could be subject to challenge. [00:14:00] Speaker 04: And Judge Tatel, just to pick up on your question, we do think that plaintiffs' position, that the implications of that are quite striking. [00:14:09] Speaker 04: Implementing a decision to set an AML of zero is a time consuming process that oftentimes requires persistence on the part of the agency. [00:14:19] Speaker 04: I mean, this is true for several reasons. [00:14:21] Speaker 04: First of all, keep in mind that the area at issue here is a very large area. [00:14:24] Speaker 04: It's over 900,000 acres. [00:14:26] Speaker 04: So no matter how well planned a single gather is, it's very difficult if not impossible to get all the horses in a single gather. [00:14:34] Speaker 04: Horses, wild horses, as Judge Howell notes in her opinion, obviously don't respect the decisions made in land use plans. [00:14:42] Speaker 04: They could come in from other areas. [00:14:44] Speaker 04: And perhaps most importantly, they reproduced quickly. [00:14:47] Speaker 04: So if you look at the record in this case, after the 2009 decision, there were estimated to be only a few dozen horses. [00:14:54] Speaker 04: And then by the time of the next census, before the 2018 gathered decision, there were 1,744 horses estimated. [00:15:02] Speaker 04: So we do think the implications of plaintiff's position are that decisions in a land use plan as a practical matter could almost never be final and not withstanding the interests of people who use and enjoy these lands, at some point finality has to kick in and that's the policy embodied both by statutes of limitations generally and 20 in section 2401A in particular. [00:15:30] Speaker 04: So we think that the implications for that are [00:15:32] Speaker 04: quite striking. [00:15:33] Speaker 03: Mr. Verney, are you familiar with the Louisiana case? [00:15:37] Speaker 04: I'm not, Your Honor. [00:15:38] Speaker 04: I apologize. [00:15:40] Speaker 03: All right. [00:15:40] Speaker 03: Well, you weren't given notice. [00:15:42] Speaker 03: It's all right. [00:15:44] Speaker 04: I'm sorry. [00:15:44] Speaker 04: I'm sorry, Your Honor. [00:15:45] Speaker 03: Well, you didn't get notice of it, so that's fine. [00:15:47] Speaker 03: Don't worry about it. [00:15:49] Speaker 04: Yeah. [00:15:49] Speaker 04: And understand that sometimes in researching for oral arguments, new cases don't fault plaintiffs for that. [00:15:55] Speaker 04: But no, I have not had a chance to review it. [00:15:58] Speaker 03: Okay. [00:15:59] Speaker 03: Thank you. [00:16:00] Speaker 05: Um, Mr. Bernie, do you know if the 2018 roundup occurred? [00:16:06] Speaker 04: So I believe, so your honor, what the, what the 2018 gathered decision authorized was actually a series of gathers. [00:16:12] Speaker 04: Um, I believe the, I believe the first of those, uh, I believe at least the first of those occurred as, as I think the record says, the first of the decisions was focused on removing horses from near near the highway where they're liable to be struck by cars and cause danger to, to themselves and other people. [00:16:28] Speaker 04: BLM does occasionally approve emergency gathers. [00:16:34] Speaker 04: It approved one at the end of 2020, I think, in the Del Mar herd area. [00:16:41] Speaker 04: But what the 2018 gather decision approved is a series of gathers. [00:16:46] Speaker 04: And I don't think there's any risk of this case becoming moot during the time the panel would consider this case, if that's what you're asking. [00:16:56] Speaker 05: Some of the horses are still out there. [00:16:58] Speaker 04: Yes, I mean, I believe the latest census was conducted I think later last year. [00:17:09] Speaker 04: And I think there's a wide range in estimates, but I think we think there are somewhere between 500 and 1,500 horses still there. [00:17:19] Speaker 04: So I mean, it's an ongoing process and requires persistence. [00:17:22] Speaker 04: And the decision was made that [00:17:24] Speaker 04: the complex would not be managed for wild horses in 2008. [00:17:28] Speaker 04: So we believe this challenge did have to be brought within six years of the 2009 gathered decision. [00:17:35] Speaker 04: There are no further, I'm happy to address any further questions the court might have otherwise, I think. [00:17:41] Speaker 02: Anything else? [00:17:46] Speaker 02: Okay, thank you. [00:17:48] Speaker 02: Thank you. [00:17:50] Speaker 02: Ms. [00:17:50] Speaker 02: Lewis, you had a little bit of time left, but you can take two minutes if you'd like. [00:17:55] Speaker 01: Your honor, I would first like to point out that the rule that the government asked this court to adopt would require my clients to challenge a decision to remove all wild horses at a time that the agency acknowledged that it would not actually remove all of those horses. [00:18:16] Speaker 01: My clients. [00:18:18] Speaker 02: But the agency said in the original plan that the first gather might not [00:18:25] Speaker 02: result in the elimination of all the horses. [00:18:28] Speaker 02: And the OA plan said the ultimate objective was zero horses. [00:18:34] Speaker 02: So, you know, the OA gathering gave you an ability to challenge all of that. [00:18:45] Speaker 02: That ripened and all of that would have been on the table had you acted before the statute of limitations expired. [00:18:51] Speaker 01: Well, your honor, again, we did act within the statute of limitations to the 2018 decision. [00:19:00] Speaker 02: Well, but that's not the question before us, right? [00:19:02] Speaker 02: I mean, that doesn't help you if, I mean, you can challenge the 2018, that's timely. [00:19:10] Speaker 02: But as the district court said, not to the extent you're challenging the underlying OAK. [00:19:16] Speaker 01: Well, your honor, I think, oh, sorry. [00:19:19] Speaker 01: No, go ahead. [00:19:21] Speaker 01: My apologies. [00:19:21] Speaker 01: I think that there's a fundamental difference in the injury between the 2009 decision and the 2018 decision, the injury that- Definitely. [00:19:34] Speaker 02: No question about it. [00:19:35] Speaker 02: But that doesn't affect the statute of limitations analysis. [00:19:40] Speaker 01: Well, I think that the statute of limitations, it's our position that under the framework that is set forth by Ohio forestry, [00:19:51] Speaker 01: that this idea of repetitive litigation, multiple challenges to implementing land use plans, that is the framework that Ohio Forestry and the Supreme Court set out. [00:20:04] Speaker 02: That brings us back to Judge Ginsburg's very first question to you this morning, which is that Ohio Forestry is not a statute of limitations case. [00:20:13] Speaker 03: As it turns out, neither is the Louisiana case. [00:20:15] Speaker 03: Can you hear that? [00:20:18] Speaker 03: Louisiana case is not a statute of limitations case. [00:20:23] Speaker 03: The conclusion is all about standing and ripeness. [00:20:27] Speaker 03: And when the only time the word limitation appears in the case is when the court quotes Baltimore gas. [00:20:33] Speaker 03: And I think this must be what you have in mind, Ms. [00:20:35] Speaker 03: Lewis, saying that the court says we have held in other cases involving the confrontation between the statutory bar and a claim not yet prudentially right that a quote [00:20:46] Speaker 03: time limitation on petitions for judicial review can run only against challenges right for review. [00:20:53] Speaker 03: Well, if your case had not been right in 2009, you would be in this situation, but it was in 2009. [00:21:02] Speaker 03: You could have challenged then, your claim accrued then and was right then. [00:21:07] Speaker 03: So that's a dictum that relates to a situation not present in this case. [00:21:12] Speaker 03: And the conclusion to the case is [00:21:15] Speaker 03: because none of these petitioners has established both standing and likeness. [00:21:19] Speaker 03: None has demonstrated that we can and should review at this time the merits of their crimes. [00:21:24] Speaker 03: So that case is of no help to you. [00:21:26] Speaker 01: Well, Your Honor, respectfully, I think that the paragraph just above that, the petitioner in that case was arguing that it would suffer a hardship because there was a rule under the Clean Air Act that required challenges to be brought within 60 days. [00:21:43] Speaker 01: And this court said, though the ability of a petitioner to bring its claim at a later time would indeed pose a significant hardship, we don't believe that the petitioner in that case would be barred, would be so barred. [00:21:57] Speaker 02: Ms. [00:21:58] Speaker 02: Lewis, anything else? [00:22:00] Speaker 02: Sorry. [00:22:03] Speaker 02: Did you have anything else? [00:22:04] Speaker 02: No, thank you. [00:22:06] Speaker 02: Okay. [00:22:07] Speaker 02: Judge Walker, anything? [00:22:09] Speaker 06: Not for me. [00:22:09] Speaker 06: Thank you. [00:22:10] Speaker 02: Okay. [00:22:10] Speaker 02: Ms. [00:22:11] Speaker 02: Lewis, thank you. [00:22:12] Speaker 02: The case is submitted.