[00:00:00] Speaker 00:
Case number 20-5088, Center for Biological Diversity, a balance versus David Longley Bernhardt, U.S.

[00:00:08] Speaker 00:
Secretary of the Interior, et al.

[00:00:10] Speaker 00:
Mr. Shannon for the balance, Mr. Hellion for the appellates.

[00:00:15] Speaker 02:
Morning, counsel.

[00:00:15] Speaker 02:
Mr. Shannon, please proceed when you're ready.

[00:00:18] Speaker 04:
Thank you, your honor.

[00:00:19] Speaker 04:
Good morning, and may it please the court.

[00:00:22] Speaker 04:
The primary issue on appeal at this early stage of the proceedings is whether the center has standing to challenge the defendant's failure

[00:01:00] Speaker 04:
to inform both its members and the public.

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Now, this court has found, quote, the law is settled that a denial of information qualifies as an injury in fact, where a statute on the claimant's reading requires that the information be publicly disclosed, and there is no reason to doubt their claim that the information would help them.

[00:01:19] Speaker 04:
Now, the court applied this test in Friends of the Animals v. Jewell, 824, F3rd, 1033, which found that Section 10C of

[00:01:32] Speaker 03:
Right, Mr. Shannon, could we take a step back?

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I understand the center maintains that this is an informational harm, but the failure to provide notice and comment is generally thought of as a procedural harm.

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And so if we were to assume that it was a procedural harm, how does your claim pass the test in Summers, the Supreme Court's decision in Summers?

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So there was a procedural harm, the requirement on us would then be to show some kind of substantive harm that is attached to that procedural harm.

[00:02:08] Speaker 04:
And I think what the defendants are doing here is reading Spokeo very narrowly and not looking at the fact that Spokeo cited

[00:02:30] Speaker 04:
However, if you if you look to summers specifically that case did not involve informational standing or even organizational standing and solely involved organizations trying to demonstrate.

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did not involve organizational standing or informational injury standing.

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It solely involved association.

[00:02:50] Speaker 03:
Well, that's what I'm saying.

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Say, just assuming that I reject the premise that this involves a proper informational claim.

[00:02:57] Speaker 03:
If it is simply a procedural harm, can you satisfy the test of Summers?

[00:03:06] Speaker 04:
I believe so, Your Honor.

[00:03:08] Speaker 04:
I mean, for two reasons.

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One, there are

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in the federal register.

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For instance, the center routinely submits, and this is detailed in our complaints, in paragraphs 9 through 12 of J, 9 through 11, petitions for the listing of species as either endangered and threatened.

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And now those petitions are judged based on the criteria that is established in the SSA framework.

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That's the criteria on which the service gathers

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has to be decided solely on the best available science.

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So there's a substantive harm there.

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There's also a substantive harm.

[00:04:02] Speaker 03:
I'm sorry, I don't understand.

[00:04:03] Speaker 03:
The substantive harm is that it was published on the website instead of in the Federal Register?

[00:04:09] Speaker 04:
Yes, Your Honor.

[00:04:10] Speaker 04:
And to that point, the publication of just the SSA framework on the website is a far cry from publication in the Federal Register.

[00:04:19] Speaker 04:
I mean, as we detail in our reply brief,

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The Federal Register Act was established exactly to prevent this kind of confusion surrounding the publication of agency guidelines, agency rules, and the like.

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It was supposed to be one place where individuals could look to understand the guidelines or the regulations, whatever they may be.

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conducts its practices.

[00:04:45] Speaker 03:
How is that a harm though that is not shared in common with all other groups or individuals that might be interested in this information?

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How is that harm particularized to the center?

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So it's particularized to the center because not only does the center currently have listing petitions pending in front of the court, but the center, and it's impossible that

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may also be harmed by the failure to publish the SSA Programs of Mining Guidelines and the Federal Register doesn't deprive the Center also of standing.

[00:05:25] Speaker 04:
This Supreme Court looked at this and FECB ACANs and said, yes, this harm may be generalized in a certain sense, but because this

[00:05:42] Speaker 03:
Well, the FEC Act, though, is very unusual in that it allows a person to challenge a non-enforcement decision of the FEC.

[00:05:53] Speaker 04:
That is true.

[00:06:07] Speaker 04:
these things in the Federal Register and Congress also provided in the citizen supervision an explicit right to enforce the non-discretionary duties of Section 4, of which Section 4-H would be one of them.

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And we've alleged that they've failed to carry out that discrete non-discretionary duty.

[00:06:27] Speaker 02:
I don't know that I... Go ahead.

[00:06:29] Speaker 01:
No, no, you go ahead.

[00:06:30] Speaker 02:
Please, please.

[00:06:31] Speaker 01:
All right.

[00:06:31] Speaker 01:
I was going to ask him about... I was going to ask Mr. Shannon about

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about your reliance on Friends of Animals.

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Which one, Your Honor?

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That was a 10C case, which is different from 4-H because 10C says that information received by the secretary as a part of any application shall be made available.

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information received by the secretary as a part of any application shall be made available to the public as a matter of public record at every stage of the proceeding.

[00:07:09] Speaker 01:
There's nothing like that in 4-H.

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To me, that shows the problem you've got because under 4-H, the only thing

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Your allegation is that the agency didn't go through notice and comment rulemaking, but you have the document.

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You have the framework.

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There wasn't anything in the, I didn't see anything in your brief that suggested that had the agency gone through notice and rulemaking, there would have been other documents you would have been entitled to.

[00:07:51] Speaker 01:
Do you see my point?

[00:07:53] Speaker 04:
Respectfully, Your Honor, to your last point,

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Yeah, we do plead in our brief that there are other guidelines that may be out there implementing the species test assessment program based on the services prior practice of not publishing the guidelines that we allege would be subject to Section 4A's requirements.

[00:08:12] Speaker 01:
But this is about the framework, right?

[00:08:16] Speaker 04:
The framework is just one example of the guidelines implementing the species test assessment program.

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There are two other

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documents that we allege our guidelines that we detail on our complaint, both the state representation on species status assessment team memos.

[00:08:32] Speaker 01:
But you have those, right?

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Those are available.

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You have them, right?

[00:08:36] Speaker 04:
We do now have them.

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They're not secret.

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They're not secret, are they?

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To be fair, the reason we have them is because we read about the existence of the state representation team's memo

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in an industry newspaper and had to contact the actual reporter who published the story to receive a copy of it.

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We then sent in a notice of intent to sue for the services failure over section 4H to publish that and also raised other substantive concerns about the memo itself.

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And then they subsequently provide us not only with a copy of the memo, but issued the clarifying memoranda stepping back some of the

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statements that they made in the original state representation on species status assessment teams memo.

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So essentially what we're stuck with right now is a game of whack-a-mole where we find out about these guidelines through one way or another, either a newspaper story about it or potentially a FOIA request or it comes up in some other context.

[00:09:42] Speaker 04:
And then the service says, well, now you have that document.

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And so you either are no longer injured or you lack redressability.

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Essentially putting us in a catch-22 where we either can't plead with specificity what specific document we think we should be published or can't get redressed because they've now made that document available in some way other than what's required by the statute.

[00:10:06] Speaker 04:
But to hold as much would render Section 4-H essentially a nullity.

[00:10:13] Speaker 04:
Um, and, and I'm sorry, your honor, there was a first part to your question, but, uh, if you could refresh my memory.

[00:10:20] Speaker 01:
No, it was about, my question was about friends of animals and the difference between the two statutes.

[00:10:28] Speaker 01:
Statute issue and friends of animal actually required the disclosure of information.

[00:10:33] Speaker 01:
The statute at issue here does not, it just requires notice and comment rulemaking.

[00:10:37] Speaker 04:
Yeah.

[00:10:37] Speaker 04:
Thank you, your honor.

[00:10:38] Speaker 04:
So it is true that Section 10C is distinguishable from Section 4H because it uses the word information, but that's not to say that Section 4... No, no, no, that's not what makes it distinguishable.

[00:10:49] Speaker 01:
It's not just that it uses the word.

[00:10:52] Speaker 01:
It says that information received by the Secretary as a part of any application shall be available to the public.

[00:10:59] Speaker 04:
Certainly, Your Honor.

[00:11:00] Speaker 01:
Let me give you an example.

[00:11:02] Speaker 01:
I think you would have had a very strong case if you would argue this is just, you know, if you'd said, look, what we're missing here, we would learn a lot.

[00:11:11] Speaker 01:
If they went through notice and comment, agencies have to respond to comments that they get in the notice and comment rulemaking process.

[00:11:18] Speaker 01:
And the agency's responses to comments would be extremely helpful for us to understand the agency's position and its strategy.

[00:11:28] Speaker 01:
And then it seems to me you would have a good case that there's something more here.

[00:11:33] Speaker 01:
In other words, our case law says notice and comment rulemaking, a failure to do that by itself does not confer standing unless there's something more.

[00:11:41] Speaker 01:
And there's something more would be

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we need the agency's responses to understand the agency's enforcement strategies.

[00:11:50] Speaker 01:
But you didn't make that argument.

[00:11:51] Speaker 04:
You didn't make it.

[00:11:52] Speaker 04:
I agree completely, Your Honor.

[00:11:52] Speaker 04:
We actually set forth those arguments both in our complaint and in our briefing.

[00:11:57] Speaker 01:
You do?

[00:11:58] Speaker 01:
Where in the complaint?

[00:11:59] Speaker 01:
Would you just show me where?

[00:12:00] Speaker 01:
I mean, if you did, fine.

[00:12:01] Speaker 01:
I didn't see it.

[00:12:03] Speaker 04:
So in the complaint at paragraph 50, and then in our first claim for relief,

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program unanswered.

[00:12:18] Speaker 01:
Well, that's not what I said.

[00:12:21] Speaker 01:
I mean, I read that.

[00:12:24] Speaker 01:
I didn't know what you meant when you said that.

[00:12:26] Speaker 01:
I didn't understand that.

[00:12:27] Speaker 01:
I didn't understand what you meant by that was that we don't have the agency's responses to comments.

[00:12:35] Speaker 04:
At the very least, in our prayer for relief, Your Honor, we ask for relief, an order from the district court requiring them to comply with the

[00:12:45] Speaker 04:
requirements of Section 4H, which would not only be publication, but an opportunity for notice and comment.

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And in response to our briefing, stating the notice and comment could provide or alleviate some of the ambiguities and opacities surrounding the SSA program right now.

[00:13:04] Speaker 04:
the service responded that they would only need to respond to substantive comments and then assume that none of our comments would be actually substantive.

[00:13:13] Speaker 04:
But you're correct in that if the service was actually required to publish the framework at the very least and potentially other guidelines, we don't know if there are other guidelines that might be subject to Section 4-H at this early stage of the case in the Federal Register and accept notice and comment.

[00:13:31] Speaker 04:
that could very well provide us with relief.

[00:13:38] Speaker 04:
And I see that I'm moving into my rebuttal time.

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I'm happy to answer other questions, otherwise I will reserve my time for rebuttal.

[00:13:47] Speaker 02:
Okay, thank you, Mr. Shannon.

[00:13:49] Speaker 02:
Mr. Halainen.

[00:13:52] Speaker 05:
Good morning, your honor.

[00:13:53] Speaker 05:
It's Daniel Halainen for the Federal Appellees.

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So I think what the center

[00:13:58] Speaker 05:
is arguing in this case is that they're harmed by the services compilation of scientific data in pre decisional documents.

[00:14:07] Speaker 05:
But they're not actually challenging any final decision that relies on that information.

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For example, an action on a petition.

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They're just claiming that their desire to know more about species status assessments is a cognizable harm.

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But they don't have a legally protected interest in that.

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So it's not a sufficient basis to establish standing.

[00:14:28] Speaker 05:
There is some question in the appeal about what the appropriate way to view the standing question is here, whether it's an informational rights case, a procedural rights case, or if there's a role for organizational standing.

[00:14:41] Speaker 05:
But I think the bottom line is that under sort of any theory of standing, the center doesn't have a legally protected right to sort of insert itself into how the service is compiling scientific data.

[00:14:55] Speaker 05:
And for that reason, it doesn't have a legally cognizable injury and no standard either.

[00:15:02] Speaker 05:
And that's why we'd ask the court.

[00:15:03] Speaker 01:
What's your response to Mr. Shannon's argument that what's going on here is that they get wind of these documents that they believe should have gone through notice and comment rulemaking.

[00:15:15] Speaker 01:
They ask the agency about it.

[00:15:17] Speaker 01:
They get the copy and then

[00:15:19] Speaker 01:
then they're, you know, they have it, but they haven't solved their underlying problem, which is their view that under the law, these documents should be going through notice and comment rulemaking.

[00:15:29] Speaker 01:
So I think he called it a game of black mold.

[00:15:33] Speaker 05:
So I think, I think I have two responses to that.

[00:15:37] Speaker 05:
The first is that, you know, of course, if the service uses a species status assessment in reaching a decision, for example, on a section four petition,

[00:15:46] Speaker 05:
The service references that as part of the record.

[00:15:49] Speaker 05:
So the species status assessment is part of the decision there and can be challenged at that time.

[00:15:56] Speaker 05:
So if they want to bring up issues related to how the service is compiling that species status assessment, there is an opportunity to bring that and seek judicial review.

[00:16:06] Speaker 05:
It's just not at this sort of early nebulous stage where they don't have any harm.

[00:16:11] Speaker 05:
The second is that it's, of course, the burden on the plaintiff to identify

[00:16:15] Speaker 05:
a sort of discrete action that they're seeking to challenge or compel.

[00:16:19] Speaker 05:
And I think an allegation that there might be documents out there doesn't yield any kind of concrete, particularized harm to the center that would be enough to establish a case or controversy.

[00:16:31] Speaker 05:
I think, you know, it is their burden to explain to the court what it is that they're actually challenging.

[00:16:38] Speaker 03:
Mr. Holland, it seems the government in its brief says that,

[00:16:44] Speaker 03:
the primary documents that are guidelines, that might be guidelines under 4-H are available online.

[00:16:51] Speaker 03:
But are there other documents, I guess non-primary documents that the service hasn't published even online, much less put through notice and comment rulemaking?

[00:17:06] Speaker 05:
So I would say as an initial matter that at this stage of the litigation, you know, we're accepting

[00:17:14] Speaker 05:
There are contention that these documents are guidelines.

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We wouldn't concede that the framework and so on are necessarily guidelines under Section 4H.

[00:17:22] Speaker 05:
But I think what we meant by that in our brief is just that the documents that are the basis of their claim in this case are already available to them.

[00:17:35] Speaker 03:
That's because they're not aware of all the documents that might be informing the agency's decision.

[00:17:42] Speaker 03:
because you haven't published them or subjected them to notice and comment rulemaking?

[00:17:47] Speaker 05:
So I think, you know, there is obviously always going to be an informational imbalance where the government knows all of what it's doing and the plaintiffs are seeking to, you know, obtain judicial review as appropriate where they understand that there has been some violation of law.

[00:18:03] Speaker 05:
But again, I would say that, you know, if they think there is a problem with species status assessments and that they're developed,

[00:18:09] Speaker 05:
in reliance on documents that they think have illegally not gone through notice and comment under Section 4H, then they can challenge a decision by the service that relies on a species status assessment and causes them some harm in some way.

[00:18:25] Speaker 05:
And I think that would be the appropriate way of bringing that to the court's attention rather than just sort of alleging generally that there's a sort of programmatic failure

[00:18:35] Speaker 05:
to disclose documents because I think under cases like Norton against Southern Utah Wilderness Alliance, the courts have been very clear that that's just not the kind of cognizable claim that a plaintiff can bring in an administrative challenge.

[00:18:48] Speaker 03:
So if they brought this lawsuit in their other suit not before us here about the Rio Grande cutthroat trout, you think it might be cognizable in that context where there was a specific species determination?

[00:19:02] Speaker 05:
I think it would obviously depend on kind of what they're claiming, but I think that would be a more appropriate way to raise the issue because the species status assessment is at that point influencing in their turn, in their view, a decision that they object to and that has harmed their interest.

[00:19:23] Speaker 05:
So I think they didn't raise, as I understand it, species status assessment issues in the Colorado case, but if they had brought it there, that would be the place to do it.

[00:19:32] Speaker 02:
But when they do that, what they're challenging is the decision.

[00:19:35] Speaker 02:
And it's just that the species status assessment plays a role in the decision.

[00:19:39] Speaker 02:
So they're indirectly getting at the species status assessment by bringing a challenge to the final decision that's at least in part predicated on the assessment.

[00:19:48] Speaker 02:
That's the way you perceive it happening.

[00:19:51] Speaker 05:
I think so.

[00:19:52] Speaker 05:
I mean, in the alternative, if there were actually an agency action that they wanted to challenge, they could bring that claim and say a document is legally defective.

[00:20:01] Speaker 05:
for failure to go through notice and comment.

[00:20:03] Speaker 05:
Like they could challenge the 2016 framework that way, but they'd have to demonstrate an Article III injury that flows from that.

[00:20:10] Speaker 05:
And I just don't think they've done that in this lawsuit.

[00:20:15] Speaker 02:
What if there were a decision, so where there is a decision that's predicated on the assessment, then you can bring a challenge to the decision.

[00:20:23] Speaker 02:
But is it possible that if there's a flaw, if they perceive a flaw in the assessment, but it doesn't

[00:20:31] Speaker 02:
but the flaw means that the service decides not to engage in a decision, then there's no way to challenge the flaw in the assessment that led to the non-decision.

[00:20:45] Speaker 05:
So I think if there isn't an agency action that relies on the species status assessment, then if they want to challenge a failure to undergo Section 4-H, they would just challenge

[00:21:00] Speaker 05:
documents that they think should have gone through notice and comment.

[00:21:04] Speaker 05:
Again, I'm not sure if they would be able to establish standing to do that, but that's just not the issue in this case.

[00:21:13] Speaker 03:
Are there any documents that the service has put through notice and comment making under 4-H?

[00:21:22] Speaker 03:
Yes.

[00:21:22] Speaker 03:
Congress seems to express a pretty firm policy that the criteria the service uses should go through this process.

[00:21:31] Speaker 05:
Yes, so the service has undertaken Section 4H, notice and comment procedures for guidelines.

[00:21:38] Speaker 05:
There were two in 2016, one involving priority status reviews, which is sort of one of the enumerated types of guidelines in Section 4H.

[00:21:50] Speaker 05:
That is at 81 Federal Register 49248.

[00:21:53] Speaker 05:
And there was also a policy

[00:21:58] Speaker 05:
on critical habitat that went through section 4H, notice and comment procedures.

[00:22:03] Speaker 05:
And I think that was also 2016.

[00:22:05] Speaker 05:
That's at 81 Federal Register 7226.

[00:22:08] Speaker 05:
So those are just two examples.

[00:22:12] Speaker 05:
But I think, you know, inappropriate circumstances where the service is seeking to adopt a document that fits within the definition of a guideline, it will go through section 4H notice and comment.

[00:22:27] Speaker 05:
So I guess one point I would just like to emphasize is this question about whether this case is properly viewed as a procedural rights case or an informational rights case.

[00:22:41] Speaker 05:
We think that ultimately doesn't matter to the outcome of the case, but we do think the court should view it as a procedural rights case because notice and comment statutes are not disclosure statutes.

[00:22:53] Speaker 05:
The informational injury tests have been developed to accommodate the peculiarities of disclosure statutes and the particular interests that Congress is seeking to protect when it adopts a disclosure statute, whereas a notice and comment statute like Section 4H serves a different purpose.

[00:23:10] Speaker 05:
As we know from cases like MCI, which we cited in our brief, notice and comment has the purpose of enhancing an agency's decision making.

[00:23:20] Speaker 05:
It's not intended to create a disclosure right.

[00:23:22] Speaker 05:
the incidental dissemination of information pursuant to a procedure like notice and comment is not the same thing as a right to disclosure of information as we understand that issue in the informational standing context.

[00:23:37] Speaker 05:
And I think on this point, the Wilderness Society against Ray case that we've cited in our briefs from Judge McCune in the Ninth Circuit really has a thoughtful explanation of why it's important to police this boundary because I think the consequence of

[00:23:50] Speaker 05:
blind informational standing tests to a notice in common type procedure, like the one at issue here, is that it kind of blurs the lines on what constitutes a concrete injury in a way that is not contemplated by Summers Against Earth Island Institute and the cases that follow that.

[00:24:08] Speaker 05:
I'm thinking of, in particular, the International Brotherhood of Teamsters case from this court, which basically says, in a notice in common situation,

[00:24:18] Speaker 05:
allegation that an agency is not complying with the procedural requirement.

[00:24:23] Speaker 05:
That's just a sheer deprivation of a procedural right in vacuo, which is not enough.

[00:24:28] Speaker 05:
And as was being discussed earlier, I don't think that the center here has alleged any concrete harm that flows from the alleged procedural violation of Section 4-H here.

[00:24:41] Speaker 05:
I don't think pointing to

[00:24:44] Speaker 05:
disclosure online or through a fire request as opposed to federal register publication can really be conceived of as creating a concrete particularized injury to the center in particular, regardless of petitions, pending, whatnot.

[00:25:03] Speaker 05:
The location of publication really is just a procedural requirement and nothing really differentiates the consequences for any particular plaintiff with respect to where it's published.

[00:25:13] Speaker 05:
And I think that's the key issue in differentiating procedural rights cases from informational rights cases, is that procedural rights cases are very concerned with generalized grievances being brought to court as Article III cases and controversies.

[00:25:27] Speaker 05:
And informational rights cases recognize that in some circumstances, Congress has identified a harm that might be generalized among the public, but is nonetheless the type of thing that can serve as a concrete injury in support of standing.

[00:25:42] Speaker 05:
And that's just not the right way to think about noticing comment.

[00:25:49] Speaker 05:
So we would urge the court to conclude that this is a procedural rights case and that the center has failed to establish procedural standing.

[00:25:56] Speaker 05:
If the court reaches informational standing, I think their allegations of informational standing fail for essentially the same reason that this is a procedural rights case.

[00:26:05] Speaker 05:
There's no entitlement to information or disclosure in section

[00:26:08] Speaker 05:
4H, unlike Section 10C in the ESA as addressed in the Friends of Animals case, which did have a discrete disclosure provision that required the release of information.

[00:26:19] Speaker 05:
So we would urge the court to affirm on that basis.

[00:26:24] Speaker 05:
Unless the court has any other questions.

[00:26:29] Speaker 02:
Thank you, Mr. Halainen.

[00:26:30] Speaker 05:
Thank you very much.

[00:26:32] Speaker 02:
Mr. Shannon, you have your rebuttal time.

[00:26:36] Speaker 04:
Thank you, Your Honor.

[00:26:37] Speaker 04:
Briefly, I just want to address Judge Tatel's question before regarding notice and comment.

[00:26:41] Speaker 04:
You can look to paragraphs one and three of the complaint that's on J-7.

[00:26:47] Speaker 04:
And I want to address a couple of points that opposing counsel made.

[00:26:52] Speaker 04:
One, he alleges that we're asserting to

[00:27:12] Speaker 04:
the framework itself in the federal register as required by Section 4-H as we allege.

[00:27:19] Speaker 04:
And that's what distinguishes this case from individual species specific decisions in which SSAs are made.

[00:27:26] Speaker 04:
Those documents contain the best available science for that decision, but we're concerned about the criteria by which those documents are made.

[00:27:35] Speaker 04:
It's like getting rulings from this court and we were to only receive the holdings

[00:27:44] Speaker 04:
feeding standards, we need to know that kind of information beforehand.

[00:27:50] Speaker 04:
And that's exactly what Congress sought to do with Section 4H.

[00:27:54] Speaker 04:
Section 4H could have ordered the service simply to establish these guidelines and could have not imposed a specific disclosure requirement on them.

[00:28:04] Speaker 04:
But it asked them specifically to publish them in the Federal Register and take notice and comment on them, if I can quickly conclude.

[00:28:12] Speaker 04:
And Congress was also clear on the endangered species

[00:28:16] Speaker 04:
is separate and apart from generalized notice and common obligations.

[00:28:21] Speaker 04:
If you look to section 16 USC 1533 B5, there's a catch-all provision that basically says, to the extent that the ESA doesn't have a specific disclosure obligation, then the APA's generalized notice and common provisions apply.

[00:28:37] Speaker 04:
But sections B and sections H and

[00:28:51] Speaker 04:
Thank you, Your Honor.

[00:28:52] Speaker 02:
Thank you, counsel.

[00:28:53] Speaker 02:
Thank you to both counsel.

[00:28:54] Speaker 02:
We'll take this case under submission.