[00:00:00] Speaker 00: Case number 20-1441 et al. [00:00:02] Speaker 00: American Soybean Association petitioner versus Michael S. Reagan, Administrator, U.S. [00:00:09] Speaker 00: Environmental Protection Agency et al. [00:00:12] Speaker 00: Mr. Sauer for the petitioners, Mr. Knudsen for the respondents, jurisdiction and cutoff date issues, Mr. Grosko for the respondents, endangered species act challenges. [00:00:22] Speaker 05: Good morning Council, Sauer for the petitioners. [00:00:25] Speaker 05: Morning, Edmund Sauer on behalf of the petitioners. [00:00:28] Speaker 05: I'd like to reserve five minutes for a button. [00:00:31] Speaker 05: Petitioners have protectively filed actions, both in this court and in the DC district court, challenging EPA's adoption of certain restrictions on growers use of the herbicide dicamba. [00:00:44] Speaker 05: Although the party certainly can't confer jurisdiction on either court, all of the parties here agree the petitioner's claims should be brought in the DC district court. [00:00:54] Speaker 05: petitioners therefore ask, because there has been no public hearing under FIFRA, that this case be dismissed and the district court action be allowed to proceed. [00:01:04] Speaker 05: If the court reaches the merits, we'd ask that the court remand the Dicamba registration to EPA without vacating it for further consideration. [00:01:14] Speaker 05: EPA has certainly afforded wide latitude in conducting scientific analysis within its expertise, but it necessarily abuses that discretion when it fails to articulate a reasoned explanation for its decision. [00:01:28] Speaker 05: And we have two ways that EPA failed to engage in reasonable decision making here. [00:01:34] Speaker 05: One, it failed to consider highly relevant sub-county nature-serve data. [00:01:38] Speaker 05: And two, it failed to explain why it chose one one-size-fits-all policy instead of other reasonable alternatives. [00:01:47] Speaker 06: So... Before we get to the merits, can we talk a little bit about jurisdiction? [00:01:51] Speaker 06: Yes, ma'am. [00:01:52] Speaker 06: So, how do we distinguish the facts here from our castle case from the 80s, right? [00:01:59] Speaker 06: Because there we explicitly noted there was no notice. [00:02:02] Speaker 06: There's no notice here. [00:02:04] Speaker 06: Um, how do we distinguish that case? [00:02:06] Speaker 05: Sure. [00:02:06] Speaker 05: Your honor. [00:02:06] Speaker 05: Well, the causal involved a very unique procedural posture where you had highly individualized dispute, two parties and the agency on a pure legal issue where those two parties were fully heard twice on that pure legal issue. [00:02:24] Speaker 05: The issue was, were they entitled to a hearing under section six of fifth [00:02:28] Speaker 05: In that circumstance, all of the interested parties had notice of their pure legal issue, an opportunity to brief it, and the record was complete. [00:02:37] Speaker 05: And so the Court of Appeals said, well, yes, we have a pure legal issue here. [00:02:42] Speaker 05: This does not fall within the heartland of FIFRA. [00:02:44] Speaker 05: It's not a registration decision. [00:02:46] Speaker 05: It's just a pure legal issue. [00:02:48] Speaker 05: And so we can think of this as having had a public hearing. [00:02:52] Speaker 05: Of course, this is very different. [00:02:53] Speaker 05: This is an individualized dispute. [00:02:56] Speaker 05: We have a broad class of interested parties that are interested in the registration decision. [00:03:01] Speaker 05: And so all of the concerns that the court addressed, the sufficiency of the record, et cetera, that the court addressed in Kossel just doesn't translate into this context. [00:03:12] Speaker 02: Is the upshot of Kossel though, even in the way you described it, [00:03:16] Speaker 02: we engage in inquiry on whether even though there wasn't formally notice that essentially everybody who needed to know knew. [00:03:24] Speaker 02: And so we then treat the circumstances as if there was a hearing. [00:03:29] Speaker 05: I would read CASEL a little bit differently. [00:03:31] Speaker 05: I think the analysis in CASEL is that when the agency is acting in a capacity outside FIFRA's heartland, outside the mainland, the kind of registration decision that's at issue here, perhaps on the margins, you can look to see if the parties have aired in a public setting, which could be individual dispute. [00:03:53] Speaker 05: You can look and see that's a public hearing. [00:03:55] Speaker 05: Again, your honor, we don't have that. [00:03:56] Speaker 05: There's no need to look beyond what Congress told us in FIFRA was a public hearing, which is a threshold matter, opportunity for notice and comment within the federal register section. [00:04:09] Speaker 05: I'm sorry, your honor. [00:04:10] Speaker 01: I was just wondering whether there's any reason to think that the parties that are interested didn't have awareness of this and a full opportunity to speak to it and in part flowing from the fact that in 2016 there was [00:04:24] Speaker 01: notice and comment. [00:04:25] Speaker 01: And granted, it's on a slightly different issue, but nonetheless, people have sort of come to the table and have they remain there since? [00:04:32] Speaker 05: Yes, Your Honor. [00:04:33] Speaker 05: We are among the parties that did not know about in advance about the particular terms of the registration that were imposed here. [00:04:42] Speaker 05: There was no advance notice given that there would be a national cutoff date. [00:04:50] Speaker 05: of June 30th and July 31st, no advance notice. [00:04:53] Speaker 05: So none of the submissions that I've seen in the records and certainly none of the ones that our clients submitted address the terms of the proposed regulation. [00:05:01] Speaker 05: There was also no notice that the ESA buffer size would be tripled. [00:05:06] Speaker 05: But even if there were conceivably Judge Pillard, the possibility that a particular petitioner may have received notice or may not have received notice [00:05:15] Speaker 05: I would ask the court to please adopt a clear jurisdictional rule that would allow the parties the predictability of knowing, is there notice in a public forum in the federal register? [00:05:30] Speaker 06: The situation where parties have to file in district court and this court simultaneously obviously seems very bad in terms of not having a clear rule. [00:05:41] Speaker 06: But I guess I'm wondering, [00:05:43] Speaker 06: What is the clear rule that this court would draw in light of CASEL without overturning CASEL? [00:05:50] Speaker 06: What is the possibility of drawing a clear line that's faithful both to the text of the statute and doesn't overrule CASEL? [00:05:58] Speaker 05: Sure. [00:05:59] Speaker 05: The rule that I would propose is consistent both with FIFRA's language and the case law is this. [00:06:05] Speaker 05: When the agency is exercising its registration authority under FIFRA, [00:06:10] Speaker 05: the heartland of FIFRA as I called it, there must be what Congress prescribed in section 21D, notice and an opportunity to comment, notice provided in the federal register. [00:06:21] Speaker 05: That is a clear, bright line rule that all the parties and the courts can follow and know whether to proceed in the court of appeals or in the district court. [00:06:30] Speaker 01: And it's- The thing that's unclear to me, and I think this is as much a creation of our own cases as anything in your argument, but even if the, [00:06:41] Speaker 01: There isn't notice and comment. [00:06:43] Speaker 01: The district court doesn't hear that. [00:06:46] Speaker 01: The district court, like this court, proceeds on the administrative record. [00:06:50] Speaker 01: So the fact that public hearing triggers our jurisdiction in the way that we've been discussing, it's just unclear why lack of public hearing would in any way be ameliorated by proceeding first. [00:07:07] Speaker 05: Sure. [00:07:07] Speaker 05: Your Honor, I would say two things. [00:07:10] Speaker 05: we might think that it's wise for actions to proceed in the appellate court and there's no benefit in the district court. [00:07:17] Speaker 05: Clearly that's a judgment for Congress to make, so we're wrestling with that statute. [00:07:20] Speaker 05: Setting that aside, there are reasons why in certain cases we would want the opportunity to proceed in the district court. [00:07:28] Speaker 05: The D.C. [00:07:29] Speaker 05: district court certainly starts with the appellate record, the administrative record as the focal point, but it's well established [00:07:36] Speaker 05: in case law in this court and in the district court, that even in record cases like this, there are opportunities to provide extra record evidence. [00:07:43] Speaker 05: It's not in the administrative record to show gaps in the agency's decision-making. [00:07:50] Speaker 05: That would be like the Alvarez case or the S case or the Oceana case in the district court reported opinion. [00:07:56] Speaker 05: So there are benefits that maybe Congress had in mind. [00:08:00] Speaker 05: It's not evidence in the record, but there are benefits [00:08:04] Speaker 05: starting some cases out in the district court. [00:08:06] Speaker 05: District courts can help distill the legal and factual issues, and weed out frivolous claims that won't need to come to this court. [00:08:14] Speaker 05: But ultimately, that's a decision that Congress has made. [00:08:17] Speaker 05: And the rule that we propose, notice and comment, is consistent with what 21D says. [00:08:24] Speaker 05: 21D says, public hearings shall be commenced with notice, comment, published in the Federal Register. [00:08:32] Speaker 05: And that's plain, easily applied rule. [00:08:35] Speaker 05: And it's consistent with all of the cases nationwide that have been decided in the registration context. [00:08:42] Speaker 05: The cases where there's been a registration decision that was preceded by notice and comment, like this court's decision in CBD in 2017, the Ninth Circuit's opinion in United Farm Workers in 2010, involved registration decisions after notice and comment. [00:08:58] Speaker 05: The case that's actually most on point with this is a district court case, Defenders of Wildlife versus Jackson, which here in the district court, DC district court, there was a registration decision. [00:09:12] Speaker 05: There was no notice in common. [00:09:14] Speaker 05: The district court in a published opinion said, there's no notice in common. [00:09:18] Speaker 05: There's been no public hearing. [00:09:20] Speaker 05: I have exclusive original jurisdiction. [00:09:22] Speaker 06: So it's not your position that all registrations require notice in common. [00:09:26] Speaker 06: but where a registration is made after notice and comment. [00:09:29] Speaker 05: Exactly. [00:09:30] Speaker 06: Public notice and comment and you have. [00:09:34] Speaker 06: direct review. [00:09:34] Speaker 05: Correct. [00:09:35] Speaker 05: In certain situations, the act requires the agency to conduct notice and comment, but it's not a uniform rule. [00:09:42] Speaker 05: But there are jurisdictional consequences for that decision. [00:09:46] Speaker 05: If they decide to conduct notice and comment on a registration decision or a re-registration decision, then there would be an opportunity for the parties to resent themselves, to exhaust their arguments for the agency and the court of appeals would [00:10:02] Speaker 05: would have a record for a public hearing for judicial review. [00:10:06] Speaker 05: But if not, then there hasn't been a public hearing for different purposes. [00:10:13] Speaker 02: So your perspective and response to Judge Pillard's question is that it's not just that the statute says that this should go to the district court in the first instance. [00:10:23] Speaker 02: The world works better if a case like this goes to the district court in the first instance rather than coming to us in the first instance. [00:10:29] Speaker 05: Yes, Your Honor. [00:10:30] Speaker 05: There are a lot of reasons why Congress may have done that, to ensure that parties like us have an opportunity to provide input in decision making, to ensure that the district court has an opportunity to evaluate the sufficiency of the record, that weed out frivolous claims. [00:10:44] Speaker 05: There are a lot of goods that could come out of district court review beyond what we read the statute to require, which is district court review in the sense [00:10:58] Speaker 05: I see I'm eating into my rebuttal time. [00:11:00] Speaker 05: Your honor, if I may say that. [00:11:03] Speaker 02: You may have additional questions for you. [00:11:06] Speaker 02: We'll give you rebuttal time. [00:11:10] Speaker 02: District Knudsen. [00:11:17] Speaker 04: Thank you. [00:11:18] Speaker 04: Good morning and may it please the court. [00:11:19] Speaker 04: My name is Andrew Knudsen representing the respondents, the U.S. [00:11:22] Speaker 04: Environmental Protection Agency. [00:11:24] Speaker 04: I'll address the issue of subject matter jurisdiction and the challenges to the application cutoff dates and my co-counsel, Mr. Grosko, will address the Endangered Species Act issues for six minutes. [00:11:36] Speaker 04: Starting with jurisdiction, this is perhaps an unusual case in that all the parties here agree that this court lacks subject matter jurisdiction and that it should be dismissed in this matter heard in the district courts. [00:11:48] Speaker 04: Because these registrations were not issued following a public hearing under section 16B, [00:11:52] Speaker 04: And the United States reasoning for that is that the statutory text, and particularly the limitation of judicial review to parties to the proceeding before the agency, demonstrates that a public hearing must include at a minimum some kind of specific pre-action notice to potentially affected parties. [00:12:12] Speaker 04: And without a public notice of requirement, then this limitation to parties to the proceeding could have the effect of recruiting parties from invoking the sports jurisdiction in cases where there may have been a hearing, but not a public one. [00:12:28] Speaker 01: Has it had any prejudicial effect here? [00:12:30] Speaker 04: Excuse me? [00:12:31] Speaker 01: Has it had any prejudicial effect here? [00:12:35] Speaker 04: Your honor, we don't think it has here in this case. [00:12:37] Speaker 04: We noted in our briefs that there's no indication that there are parties that were unfairly left out of the proceedings here. [00:12:45] Speaker 04: As the United States, we are considering how discourse interpretation of 16B affects not just this case, but also going forward, potential fairness issues that potentially adversely affect the parties. [00:13:00] Speaker 04: And here, [00:13:01] Speaker 04: We believe that this limitation of circuit court review for the potentially affected parties really implicates fairness issues if no public notice is required before granting this court exclusive jurisdiction over these actions. [00:13:18] Speaker 06: So do you agree with petitioners' articulation of the rule that we should set for when parties go to this court or to the district court? [00:13:27] Speaker 04: Not entirely, your honor. [00:13:29] Speaker 04: I heard the petitioners to be arguing that a public hearing under section 16B would only be met by federal register notice and a comment period. [00:13:39] Speaker 04: And we don't think that 16B needs to be read that narrowly, or in fact, even that this court in this case needs to address kind of what form or content of the notice is sufficient, because here the parties are all in agreement that there was simply no notice. [00:13:55] Speaker 04: of the EPA's receipt of these applications for registration, or it's intended action on those registrations. [00:14:03] Speaker 06: We do agree that this court's decision in Costile doesn't... Why wouldn't we say that federal register notice is necessary given Section 21, which clearly seems to require notice in the federal register? [00:14:17] Speaker 06: I mean, why would we leave that unstated when the statute seems to provide a rule? [00:14:24] Speaker 04: Your Honor, [00:14:25] Speaker 04: The reason that the United States doesn't believe that that's the case, one of the reasons we believe that's not the case is because Costell itself seems to preclude that reading. [00:14:38] Speaker 04: There's language in Costell that suggests that Section 16B public hearing is not necessarily as narrow as a public hearing is defined in Section 21. [00:14:49] Speaker 04: So it's at least possible that some other form of notice could satisfy that minimum. [00:14:55] Speaker 06: Is there any advantage to the EPA in providing notice in a form that's not in the federal register? [00:15:00] Speaker 06: I mean, is it common for the agency to provide notice in some other way when there's public notice in common? [00:15:06] Speaker 06: I mean, isn't it just typical for notice to be in the federal register? [00:15:10] Speaker 06: What would be the advantage to the agency of leaving that open? [00:15:14] Speaker 04: In the FIFRA context, Your Honor, [00:15:17] Speaker 04: In terms of registration decisions, BIFRA only requires federal register notice in certain limited circumstances involving a registration application with a new active ingredient or a changed use pattern. [00:15:31] Speaker 04: EPA has in the past used at times under its kind of discretionary public participation policies has solicited comment through other means such as [00:15:41] Speaker 04: posting a notice of application on his website in a way that the public can access. [00:15:46] Speaker 06: And in those situations, would the EPA think there would be direct review in this court? [00:15:51] Speaker 04: It's possible, Your Honor. [00:15:53] Speaker 04: It is, but again, we don't think that the court needs to reach that here. [00:15:57] Speaker 04: Just again, given the lack of that kind of notice. [00:15:59] Speaker 06: It doesn't really help us get a rule that would be useful to parties in terms of figuring out which court they should go to rather than bringing simultaneous suits in the district court and court of appeals. [00:16:09] Speaker 04: We think that the guiding requirement, or I think the most important guide in determining whether there's been sufficient notice is whether the potential adversely affected parties that would be initially excluded from invoking the course jurisdiction have been put on notice. [00:16:28] Speaker 04: And we think that that's kind of what Costell [00:16:31] Speaker 04: advise it here because as the petitioners council noted that decision needs to be considered in the context of the very narrow action that was being challenged there. [00:16:43] Speaker 04: The question essentially was whether EPA had all the public hearing on a decision not to hold a hearing at the request of interested parties. [00:16:52] Speaker 04: And they're the only potentially effective parties were the ones who had requested a hearing who necessarily had noticed in that case. [00:16:59] Speaker 04: But that's why we believe that the court didn't focus on the public notice requirement in that case, the focus instead on whether the proceedings were sufficient. [00:17:06] Speaker 06: So maybe causal can be limited to facts. [00:17:10] Speaker 04: We think at least that on the question of notice, it could be limited to its facts. [00:17:16] Speaker 04: It could certainly stand for the proposition that an adequate record for review is necessary, but not sufficient. [00:17:23] Speaker 04: for a circuit court jurisdiction, but we think that public notice is also a minimum requirement. [00:17:29] Speaker 04: And we think on that issue that the Ninth Circuit's decision in Northwest Food Process Association is a helpful guide as well, given that that case addresses a case where two different decisions by EPA were both considered in part of the same proceedings. [00:17:46] Speaker 04: EPA considered objections to both aspects of that decision, [00:17:50] Speaker 04: But one aspect of that decision, the existing stocks provision was included in the public notice of the hearing. [00:17:57] Speaker 04: And the other aspect, the treatment, excuse me, I've got the reverse. [00:18:00] Speaker 04: The cancellation decision was included in the pre-action notice. [00:18:05] Speaker 04: The existing stocks provision involved in that case was not included in the public notice. [00:18:09] Speaker 04: And the Ninth Circuit found in that case that whereas [00:18:13] Speaker 04: Those proceedings were sufficient to invoke jurisdiction for the cancellation decision because of the inclusion of notice. [00:18:19] Speaker 04: They were not sufficient to constitute a public hearing on the existing stocks provision and had particularly noted the unfairness, the parties that would not have been put on notice and wouldn't have had an opportunity to invoke the court's jurisdiction. [00:18:32] Speaker 02: I was asking if you say Kossel could be limited to its facts. [00:18:35] Speaker 02: I mean, obviously it wouldn't be the fact that the party's name was Kossel. [00:18:39] Speaker 02: So it's what's the relevant, [00:18:41] Speaker 02: facts that you would identify? [00:18:43] Speaker 02: Is it because one way to look at it is because of the sequence of events there, it had to be the case that everybody who had an interest in the hearing component of it already had notice because they had an interest in the cancellation. [00:18:55] Speaker 02: Um, but then that seems to beg an inquiry that just looks to how apparent is it that everyone who had notice would have had notice. [00:19:03] Speaker 02: And if we do that, then it's, it would allow for potentially reaching the conclusion in this case. [00:19:09] Speaker 02: that their notice considerations were satisfied too. [00:19:12] Speaker 02: What's the essential facts? [00:19:15] Speaker 04: Your honor, I think it's the fact that, again, this is not, it was not merely the parties that had an interest in the cancellation, but specifically an interest in whether or not EPA would grant these requests for a hearing on that cancellation. [00:19:30] Speaker 04: And there we think that is an extremely narrow issue to be challenged that, [00:19:35] Speaker 04: in which it's one of the few cases where it is clear on its face that the only parties potentially adversely affected did have notice. [00:19:42] Speaker 04: And we think that's worlds away from the registration decision that's involved here, where a much broader universe of parties could have interest in that decision that could potentially be affected. [00:19:53] Speaker 02: So because of the sequence of events in that case, there was just no possibility that anyone else would have needed notice that did not otherwise already have it. [00:20:02] Speaker 02: Yes, Your Honor, that's right. [00:20:03] Speaker 02: In any situation outside of that, [00:20:05] Speaker 02: there's at least some possibility. [00:20:07] Speaker 02: That's a no. [00:20:09] Speaker 02: I think that's right, Your Honor. [00:20:10] Speaker 02: Yes. [00:20:12] Speaker 02: Can I ask you a question about, unless my colleagues have further questions about this part, just on standing. [00:20:17] Speaker 02: So in theory, even if we thought that jurisdictionally this belongs in the district court, standing is still something in theory we could consider the district court considered, I think. [00:20:26] Speaker 02: I think either court could do it. [00:20:28] Speaker 02: And I'm just wondering, does this do the supplemental affidavits [00:20:33] Speaker 02: standing affect your sense of whether there is standing here. [00:20:37] Speaker 04: You are. [00:20:37] Speaker 04: That's an issue that my co council is prepared to address because it involves the issue. [00:20:42] Speaker 04: So if there are no further questions, I'll further. [00:20:48] Speaker 04: Thank you. [00:20:48] Speaker 04: Thank you. [00:20:55] Speaker 03: Dr Roscoe. [00:21:00] Speaker 03: Good morning, Your Honors. [00:21:00] Speaker 03: I'm Greg Roscoe from the Department of Justice. [00:21:03] Speaker 03: I'll be addressing the ESA issues. [00:21:05] Speaker 03: I'd like to emphasize three points. [00:21:08] Speaker 01: You might speak up or adjust the microphone. [00:21:10] Speaker 01: I'm sure the recording will pick you up. [00:21:13] Speaker 03: Thank you, Judge Pillard. [00:21:16] Speaker 03: I'd like to address three issues today. [00:21:18] Speaker 03: First, I'd like to talk a little bit about the history and the context of the ESA buffers. [00:21:22] Speaker 03: I do want to address standing, and I will get to that very quickly. [00:21:26] Speaker 03: And also record review issues. [00:21:30] Speaker 03: First of all, this is a story of EPA taking reasonable steps to make sure that it meets both its FIFRA and Dangerous Species Act obligations. [00:21:39] Speaker 03: In 2016, EPA first authorized over-the-top use on cotton and soybean and immediately put in place a 110-foot buffer. [00:21:48] Speaker 03: So everyone was on notice that buffers were at issue already in 2016. [00:21:51] Speaker 03: There were reports of offsite movement and therefore EPA required [00:21:58] Speaker 03: there to be certified applicators. [00:22:01] Speaker 03: And those certified applicators had to go through specific training. [00:22:04] Speaker 03: That's already in 2017. [00:22:04] Speaker 03: In 2018, EPA adds the 57-foot omnidirectional buffers for those counties. [00:22:11] Speaker 03: So already, everyone's on notice that we're talking about 57-foot buffers every county where there's an ESA-listed species. [00:22:17] Speaker 03: And we're talking of hundreds, if not really many, many hundreds of endangered or threatened plants across these 34 states where this applies. [00:22:28] Speaker 03: That's 2018. [00:22:28] Speaker 03: In 2020, of course, the Ninth Circuit and National Family Farm Coalition finds DPA has, in fact, underestimated the amount of offsite movement there's been. [00:22:38] Speaker 03: DPA goes back to the drawing board. [00:22:41] Speaker 03: The petitioners here were involved as amici in the National Family Farm Coalition case. [00:22:47] Speaker 03: You're on notice of what had been going on. [00:22:50] Speaker 03: At that point in 2018, there is already still 110 foot buffer for downwind. [00:22:54] Speaker 03: In 2020, importantly, [00:22:58] Speaker 03: I want to be clear, 240 feet for those counties where there are no ESA-listed species and 310 where they do exist. [00:23:08] Speaker 03: But that does not, petitioners do not talk about this, but they have the option, growers do, to go back over that area when the wind shifts and effectively reduce it down, mitigate that ESA-listed buffer to the wind shifts. [00:23:27] Speaker 03: So that's in 2020. [00:23:28] Speaker 03: EPA is responding to the Ninth Circuit decision, which I urge the court to read. [00:23:32] Speaker 03: I commend that one to you. [00:23:35] Speaker 03: And we think EPA has been entirely reasonable in the way it's handled this product. [00:23:41] Speaker 03: Understanding, and Mr. Mabassin, you specifically raised the question of the second Howell and Robertson declarations filed with the district's reply. [00:23:50] Speaker 03: If you look at, for example, paragraph 13 of the second Howell declaration, [00:23:56] Speaker 03: Paragraph 16 of the Robertson, Second Robertson Declaration. [00:23:58] Speaker 03: These are individuals who have farms in Beaufort County, North Carolina, the coast, and South Texas, New Cease and River counties. [00:24:07] Speaker 03: And at no point these folks, do they say anything, even in their second round of declarations, other than that they are subject to the ESA vote. [00:24:17] Speaker 03: And we don't think that's enough to make out a claim of injury. [00:24:20] Speaker 03: In fact, we think that they would have to show that, you know, [00:24:23] Speaker 03: It's a bit tied up in the fact that we don't have the nature of documents before us. [00:24:28] Speaker 03: This court has no documents at all to evaluate this, but they'd have to be able to connect the dots. [00:24:35] Speaker 03: They'd have to be able to show that their farm would no longer be in the footprint of an endangered species. [00:24:42] Speaker 02: If county data were used, they'd have to show that delta, the difference between using [00:24:49] Speaker 03: Right. [00:24:50] Speaker 03: That it would have to make a difference. [00:24:51] Speaker 03: That it would actually have some difference. [00:24:53] Speaker 03: That there would be some redressability. [00:24:55] Speaker 01: Let me ask you, Mr. Grosko, a prior question, which is in looking for where the petitioners raised the objection to the failure to use the sub-county data, it's in, I gather, a note, footnote 10 on JA, I mean, footnote 9 on JA 10. [00:25:14] Speaker 01: Is that enough to preserve this particular objection? [00:25:18] Speaker 01: It just doesn't, [00:25:19] Speaker 01: talk about the scope of any buffer. [00:25:23] Speaker 01: It just says, hey, we've got this great nature serve data. [00:25:27] Speaker 01: You should look at it. [00:25:28] Speaker 03: Right. [00:25:28] Speaker 03: It actually refers to pre-serve data, which is apparently a culling. [00:25:31] Speaker 03: It's referenced by citation. [00:25:33] Speaker 03: So in the record review context, we don't have this idea that you can cite to documents. [00:25:40] Speaker 03: And those are automatically incorporated into the record. [00:25:42] Speaker 03: The intervener has never provided nature serve data. [00:25:47] Speaker 03: And let me be perfectly clear, it lacks a subscription to nature serve. [00:25:52] Speaker 03: It doesn't have the ability on its own to obtain this. [00:25:55] Speaker 01: Doesn't Fish and Wildlife use it? [00:25:57] Speaker 03: So that's an interesting question, Judge Miller. [00:26:01] Speaker 03: There are references to that, but if you look at the biological, it's really the only two citations in footnote 10 of the intervener's brief that refer to plants, specifically. [00:26:10] Speaker 03: And of course, plants are different than animals in this respect. [00:26:13] Speaker 03: But the biological opinion and the Federal Register notice for the Virginia Spirea [00:26:19] Speaker 03: They talk about, for example, nature serve data being referenced by Fish and Wildlife Service for something like hydrology, quotation in that, if you look at the actual citation itself, Virginia's EPA is talking about hydrology, it's not talking about the location of the plant. [00:26:36] Speaker 03: So it's not clear from the citations that the interveners have provided that Fish and Wildlife Service relies on nature serve data for location of plants. [00:26:45] Speaker 01: Looking at the other side of the coin, can you point me to anywhere in the record where EPA supports its reasoning using county-level data? [00:26:55] Speaker 03: Yes, at JH2121213, EPA talks about how Fish and Wildlife Service is be recognized. [00:27:05] Speaker 03: That's what Congress intended. [00:27:07] Speaker 03: This court and courts across the country have recognized that. [00:27:11] Speaker 03: And this is data Fish and Wildlife Service embedded by [00:27:14] Speaker 03: expert biologists, and we're not talking about a sort of haphazard collection of information by individuals as to where an individual of a plant might exist. [00:27:24] Speaker 03: We're talking about a more fulsome, comprehensive evaluation. [00:27:29] Speaker 02: Your Honor, I don't have any further questions. [00:27:32] Speaker 02: Thank you, Counsel. [00:27:33] Speaker 02: Thank you. [00:27:34] Speaker 02: Mr. Sauer, we'll hear from you on rebuttal. [00:27:38] Speaker 02: You deserve five more. [00:27:40] Speaker 02: You are at four and a half minutes. [00:27:41] Speaker 02: We'll round it up to your five. [00:27:43] Speaker 05: I appreciate that, Your Honor. [00:27:44] Speaker 05: We just discussed jurisdiction briefly. [00:27:49] Speaker 05: I think the government proposed [00:27:54] Speaker 05: A jurisdictional rule short of notice and comment. [00:27:57] Speaker 05: Something along the lines of, did the parties have notice of it? [00:28:00] Speaker 05: I'd make two points. [00:28:02] Speaker 05: I think that's an unworkable rule because it will continue to invite the question, did these parties have sufficient notice? [00:28:10] Speaker 05: And we're back in the same quiet mire that we're in right now, where we don't know where to go to the court of appeals or to the district court. [00:28:16] Speaker 05: clear notice and comment in the Federal Register of Jurisdictional Rules. [00:28:20] Speaker 05: It's consistent with 21D of FIFRA. [00:28:23] Speaker 05: It's consistent with every case that's been decided in the registration context. [00:28:28] Speaker 05: would solve the problem that we've been faced with consistently. [00:28:34] Speaker 05: It also would raise this bizarre situation where one petitioner would have to come to this court if he or she had adequate notice or guessed that he or she had adequate notice, but then another petitioner would have to challenge the same registration in the district court [00:28:50] Speaker 05: because you or she may not have had adequate notice. [00:28:53] Speaker 05: So you could have a claim under FIFRA proceeding in the district court at the same time one is proceeding in the court of appeals. [00:28:59] Speaker 05: So we would ask the court not to adopt that evade jurisdictional rule and instead deal with something clear that explains the case law way and also 21D of FIFRA. [00:29:11] Speaker 05: Notice in public comment, public hearing has occurred in registration, the court of appeals has jurisdiction. [00:29:18] Speaker 05: There's nothing in causal that is to the contrary. [00:29:22] Speaker 05: There's a footnote 25 that says in that unique situation, 21 D doesn't govern. [00:29:30] Speaker 05: It's not controlling. [00:29:32] Speaker 05: If we don't dispute that it's not controlling, our argument accepts that maybe causal address the unique procedural posture. [00:29:40] Speaker 05: Um, but [00:29:41] Speaker 05: It certainly, Congress had on its mind registration decisions when it was writing 21D. [00:29:48] Speaker 05: And in that heartland, the plain and simple public notice rule should govern. [00:29:55] Speaker 05: Is there other questions about jurisdiction? [00:29:57] Speaker 05: Can I just say two things, but on standing and merits. [00:29:59] Speaker 05: Your Honor, standing can be raised here or in the trial court. [00:30:04] Speaker 05: This court does not have to address standing if it does not need to, if it dismisses on jurisdictional grounds. [00:30:11] Speaker 05: There were redressability issues. [00:30:13] Speaker 05: I was just saying, I think we could address standing if we wanted to. [00:30:16] Speaker 05: Yes, of course. [00:30:17] Speaker 05: There's no sequencing rule for the court. [00:30:21] Speaker 05: The second issue, the redressability argument, there's a relaxed redressability standard that applies when a party is alleging that the agency didn't engage in certain analysis, that this court applies pretty routinely. [00:30:36] Speaker 05: You have to show that the agency's outcome could be different if [00:30:40] Speaker 05: the procedural error were fixed. [00:30:43] Speaker 05: That's the standard that we would satisfy here. [00:30:45] Speaker 05: Our original declaration satisfied and so do the subsequent declarations. [00:30:51] Speaker 05: And then Judge Pillard, on your point about it, I think it was more of an administrative exhaustion point. [00:30:55] Speaker 05: Did we raise this? [00:30:57] Speaker 05: I would say two things. [00:30:59] Speaker 05: We don't have the data. [00:31:01] Speaker 05: It's proprietary data that EPA required registrants to develop back in the 90's up so even if we had been provided notice. [00:31:13] Speaker 05: and an opportunity to provide comment on these particular terms, it would be impossible for us to provide the data. [00:31:22] Speaker 05: But ultimately, the Nature Species Act imposes on the agency an obligation to find that data out, even if a party doesn't raise it. [00:31:31] Speaker 05: That's Defenders of Wildlife case from the Fourth Circuit. [00:31:34] Speaker 05: It's a statutory obligation. [00:31:36] Speaker 05: But ultimately, we didn't have notice of these terms, so it would be hard [00:31:42] Speaker 05: for it to hold us to have administratively failed to preserve the argument when we didn't have notice of the, of the terms themselves. [00:31:53] Speaker 05: So the questions we asked the court to dismiss this or lack of subject matter jurisdiction or otherwise remand without vacancy. [00:32:01] Speaker 05: Thank you council. [00:32:02] Speaker 05: Thank you to all council. [00:32:03] Speaker 02: We'll take this case under submission.