[00:00:00] Speaker 03: difference, three and a half million acre of false dirt. [00:00:04] Speaker 03: So the district court could reach in defining its relief the subsequent rule. [00:00:11] Speaker 03: That declaratory relief is available where it would, as with all declaratory relief, it would presently affect the party's rights or have a more than speculative effect, chance of affecting them in the future. [00:00:23] Speaker 02: Why didn't you challenge the November rule or have you elsewhere? [00:00:28] Speaker 03: We have two suits pending right now that would provide us the relief that we're seeking in some way or another. [00:00:37] Speaker 03: And one is this, we believe, because again, the district court issued declaratory relief affecting our rights with respect to that subsequent rule that's based on the delay rules. [00:00:46] Speaker 03: We also have a motion to enforce the settlement that led to the January 2021 rule, the revision rule. [00:00:54] Speaker 03: pending for the last year and a half in the district court. [00:00:57] Speaker 03: So we could, maybe we will. [00:01:02] Speaker 02: Sound like substantive challenges to the November rule. [00:01:06] Speaker 03: Well, your honor, a predicate of the November 2021 rule is that the lay rules challenge here prevented the prior administration's rule from taking effect. [00:01:16] Speaker 02: I get that, but it seems like you could challenge the November rule and make [00:01:21] Speaker 02: the illegality of the delay rules, part of your challenge to the November rules? [00:01:26] Speaker 03: Your Honor, we would agree we can. [00:01:28] Speaker 03: But Union of Concerned Scientists shows that we don't have to. [00:01:32] Speaker 03: That this court has jurisdiction. [00:01:33] Speaker 03: That this case is not legal. [00:01:35] Speaker 02: I mean, I'm not asking you to reveal litigation strategy or anything. [00:01:39] Speaker 02: But it's just not clear to me why you didn't or why you wouldn't. [00:01:43] Speaker 02: And it also, I think, speaks to the capable repetition yet evading review. [00:01:47] Speaker 02: If you could do this by challenging the November rule, then it wouldn't be evading review. [00:01:57] Speaker 03: Two responses on that. [00:01:59] Speaker 03: I think the predicate of your question shows that this case is not moved because the same issue is presented in the subsequent rule. [00:02:07] Speaker 03: Again, that's why Union of Concerned Scientists found that the subsequent rule that extended the safety [00:02:12] Speaker 03: equipment deadlines did not move to the prior rule on which that subsequent rule was based. [00:02:18] Speaker 03: And that's why Union of Concerned Scientists, this court said, would squander judicial resources and the party's resources to have to raise the same issue again in challenging the subsequent rule. [00:02:28] Speaker 03: And especially here, where it took, we challenged the plaintiffs here, many of the plaintiffs here, challenged the prior 2012 rule. [00:02:36] Speaker 03: And it took eight years to get to no decision at all, get to a settlement. [00:02:41] Speaker 03: The challenge to the subsequent November 2021 rule would be far larger, far more complicated, a much bigger administrative record. [00:02:49] Speaker 03: And that record wouldn't even present the specific issues raised here, which we would again have to litigate in challenging that subsequent rule. [00:02:57] Speaker 03: This court, again, a union of concerned scientists, said that it would make much more sense to challenge the rule that actually raises the issue, that decides the issue, [00:03:07] Speaker 03: here whether the prior administration's rule one didn't affect, revise the critical habitat area for northern spotted owl, and to raise the same issue in a subsequent rule that only depends on a prior rule. [00:03:19] Speaker 03: So that's what we would do here. [00:03:21] Speaker 01: I would ask- And when you say the subsequent rule depends on the prior rule, are you talking about the effect of the delay rules? [00:03:28] Speaker 03: or you're talking about something else. [00:03:30] Speaker 03: The subsequent rule depends on the delay rules having validly prevented the prior administration's rule from taking effect. [00:03:39] Speaker 01: And what you mean by that is that the subsequent rule could have never come into being if [00:03:44] Speaker 01: What exactly do you mean in the chain of conversation? [00:03:46] Speaker 03: We believe that to be true. [00:03:47] Speaker 03: I think it's inherently arbitrary and capricious for the agency to say to the people of the Pacific Northwest that they're only helping, that they're reducing environmental impact, economic impact, removing areas from critical habitat designation when in fact they were adding over 3 million. [00:04:07] Speaker 03: And based on that predicate that the prior rule never took effect, the agency did find that it could take a shorter process to- No, but when you say the prior rule never took effect, you're not talking about the delay rules then? [00:04:21] Speaker 03: We're talking about the January 2021 rule, which moved about three and a half million acres in the critical habitat designation for northern spotters. [00:04:31] Speaker 03: Which the November 2021 rule displaced? [00:04:34] Speaker 03: which the delay rules prevented from taking effect, and then the November 2021 rule replaced, assuming that it had never taken effect. [00:04:43] Speaker 03: That's exactly the situation in NRDCB Abraham. [00:04:46] Speaker 03: For the subsequent delay, there was a prior rule [00:04:50] Speaker 03: delay rules delayed the effective date of that prior rule. [00:04:54] Speaker 03: Then the agency issued a subsequent rule that assumed that the prior rule had never taken effect. [00:04:59] Speaker 03: What the Second Circuit found in that case was that the challenge of delay rules remained live because the subsequent rule depended on the prior rule here in January [00:05:11] Speaker 03: 2021 rule, never having it taken, never having changed the critical habitat baseline here in Northern Spotted Owls. [00:05:19] Speaker 03: But yes, the subsequent rule does depend on the challenge, the delay rules here, on their validity. [00:05:26] Speaker 03: So the district court could issue relief that affects the subsequent rule. [00:05:30] Speaker 03: That type of declaratory relief, even injunctive relief, is available where it would affect the party's rights, where a subsequent agency action is based on an action that this court finds unlawful. [00:05:43] Speaker 03: One more point on why we don't challenge subsequent rule. [00:05:47] Speaker 03: I think the respondent's brief here shows that they will try to procedurally box us if we abandon this case. [00:05:54] Speaker 03: They argue that the presumption of agency regularity means that when they issued that subsequent rule, all that really mattered was that they reasonably believed that the prior rule was valid. [00:06:06] Speaker 03: Not that it was actually valid. [00:06:09] Speaker 03: So that's yet another reason, in addition to the fact that we've already briefed the district court, was ready for a decision for six or seven months, more, I think, before the time the court dismissed the case as boot. [00:06:22] Speaker 03: After the defendants here repeatedly invited the district court to not reach the merits of the case, because, quote, events would soon overtake the challenge here. [00:06:34] Speaker 02: I think the government is likely to say that the precedent you're relying on [00:06:39] Speaker 02: they had delay rules, but they also had substantive rulemaking in them as well. [00:06:46] Speaker 02: So what's your response to that? [00:06:48] Speaker 03: Our response is that it's very substantive that the subsequent rule assumed that the critical habitat baseline on which the agency acted was three and a half million acres. [00:07:01] Speaker 02: And maybe I'm misunderstanding their argument, but I think it's not that the [00:07:04] Speaker 02: in the precedents, the equivalent of the November rule had substantive rulemaking. [00:07:09] Speaker 02: It's that the equivalent of the delay rules had substantive rulemaking in addition to the procedural delays. [00:07:17] Speaker 03: So that was not the case in NRDCB Abraham. [00:07:20] Speaker 03: It was that delay rules, it had a substantive effect. [00:07:23] Speaker 03: But what was that issue was the delay itself, which was issued without notice of comment. [00:07:28] Speaker 03: That had substantive effect in that it set the baseline for the subsequent rule. [00:07:32] Speaker 03: That's the same situation and, you know, the OCR parish school board under the Supreme Court. [00:07:38] Speaker 03: The Supreme Court held that a challenge to a voting plan or district aim plan for one election that had already occurred didn't become moot. [00:07:47] Speaker 03: Not because it would be the same plan for the next election in 10 years, but because it set the baseline for that next election and the plan that would be required then. [00:07:57] Speaker 03: So it is substantive. [00:08:01] Speaker 03: Your Honor, turning to the capable of repetition, but evading review, just briefly, I'd like to point out. [00:08:06] Speaker 01: Yeah, sure. [00:08:07] Speaker 01: Take just a little bit, and then we'll hear from the government. [00:08:08] Speaker 01: We'll give you a little time for review. [00:08:09] Speaker 01: OK. [00:08:10] Speaker 03: I'd just like to point out a couple of things. [00:08:13] Speaker 03: One thing, and that is that, again, the history of presidential freeze memorandum shows that this case is capable of repetition and affecting plaintiff's broad interests here, which span federal forests. [00:08:26] Speaker 03: We cite, too, the Biden administration's freeze memorandum [00:08:30] Speaker 03: and say that is part of that line of evidence. [00:08:34] Speaker 03: In fact, the Biden administration also delayed a rule issued by the prior administration under the Migratory Bird Treaty Act without notice in common, effective immediately, that affects plaintiff's rights here. [00:08:48] Speaker 03: So the American Forest Resources Council opposed that delay and supported the prior rule and opposed it to replacement. [00:08:57] Speaker 03: It even affected Northern Spotted Owl. [00:09:00] Speaker 03: The migratory bird treaty act rules that this administration [00:09:04] Speaker 03: So to say that this type of delay tactic is not capable of repetition, I think, ignores the broad scope of the plaintiff's interest here and the history of this type of delay tactic. [00:09:17] Speaker 01: And when you say delay tactic, what exactly are you talking about with the tactic? [00:09:21] Speaker 01: The delay rules themselves? [00:09:23] Speaker 03: The legal question presented here, I think, fundamentally is whether an agency can prevent a prior administration's rules from taking effect [00:09:32] Speaker 03: by issuing successive delays, by issuing delay rules, because they want to reconsider the rule. [00:09:38] Speaker 03: And this court, in cases like Airlines, Houston, and others, has held that you can't do that. [00:09:44] Speaker 03: And I think just to make this point, Air Alliance used to be EPA 906 F3D 1049. [00:09:54] Speaker 03: There this court vacated 20 month delay rule. [00:09:58] Speaker 03: And it ruled that EPA may not employ delay tactics to effectively repeal a final rule while sidestepping the statutorily mandated process for revising or repealing that rule on the merits. [00:10:11] Speaker 03: So what this agency has done is to package in several steps what it couldn't do in that case, one, and get review. [00:10:21] Speaker 03: in one longer delay. [00:10:23] Speaker 03: And the records before the court, I think this is even different than other cases that are likely to present the same facts. [00:10:30] Speaker 03: Records before this case show that the agency plans from the outset a three-step delay, delay, replace process, having drafted the delay rules within days of the Biden administration. [00:10:44] Speaker 03: Then it's proceeded to issue successive delays without notice and comment to prevent that prior rule from going in effect. [00:10:51] Speaker 03: And so I think there is very much evidence of manipulative intent here. [00:10:58] Speaker 01: OK. [00:10:59] Speaker 01: Why don't we hear from the government, and we'll give you some time for rebuttal. [00:11:06] Speaker 01: Thank you, Mr. Welty, Ms. [00:11:09] Speaker 01: Pepin. [00:11:19] Speaker 00: This court has recently held twice and has for decades held that it is such a well-settled principle that when an agency action has been superseded by another regulation, that litigation over the legality of the original regulation becomes moot. [00:11:41] Speaker 00: This is such a routine matter. [00:11:42] Speaker 00: that it's usually dealt with in an unpublished order. [00:11:46] Speaker 00: Plaintiffs say that this case is an exception for the reasons that you heard. [00:11:50] Speaker 00: They maintain that the delay rules changed the status quo in such a way that the November rule depends on it. [00:11:59] Speaker 00: And so it still has, in their view, continuing consequences. [00:12:04] Speaker 00: We don't agree with them about that, but that's not really a question for this lawsuit. [00:12:08] Speaker 00: That's a question for a future lawsuit challenging the November rule. [00:12:12] Speaker 00: And contrary to what Mr. Welty suggested, we do not argue that they cannot raise that issue in a future challenge to a final agency action to which it is relevant if that action remains alive. [00:12:25] Speaker 00: But that's not the case here. [00:12:26] Speaker 00: Here, even if you assume their position that the November final rule in some way depends on the delay rule, that would at most establish an injury that is traceable [00:12:41] Speaker 00: the delay rules, but we still don't have this redressability as a district. [00:12:48] Speaker 00: And it's a black letter, fundamental constitutional law, that you must have injury in fact traceable to the defendant's action that is redressable by a judicial order at all stages of the controversy. [00:13:01] Speaker 00: And without it, the action must be dismissed no matter how judicially inefficient that may be. [00:13:07] Speaker 00: It is a fundamental principle of the separation of powers, going back to the founding. [00:13:12] Speaker 02: Did I hear you to say that in a future case, if the November rule is challenged and the delay rules are challenged at the same time, that that court could decide the legality of the delay rules? [00:13:31] Speaker 00: Yes, they could decide it. [00:13:33] Speaker 00: Because assuming plaintiff's theory, [00:13:37] Speaker 00: that the November rule is invalid unless the delay rules were effective. [00:13:44] Speaker 00: They can certainly make that argument. [00:13:46] Speaker 00: And a court could address that argument and decide the legality of the delay rules en route to that holding. [00:13:53] Speaker 02: But you would argue that the November rule is valid regardless of the legality of the delay rules. [00:14:00] Speaker 02: And you would probably tell the court, therefore, you can't decide the legality. [00:14:06] Speaker 02: of the delay rules, because it's irrelevant. [00:14:08] Speaker 00: No, no. [00:14:09] Speaker 00: We would disagree with their argument on the merits, but not that the court wouldn't have jurisdiction to consider it. [00:14:14] Speaker 00: This sort of thing happens all the time. [00:14:16] Speaker 00: For example, when there's a challenge to a site-specific agency action that is backed up by a programmatic document, challenges to the programmatic document can be brought through the site-specific action. [00:14:29] Speaker 00: And this would be a similar situation where, to the extent that they're challenged to the November rule, [00:14:35] Speaker 00: on saying that the delay rules were ineffective, they would be free to make that argument in an action where there was a live agency action. [00:14:46] Speaker 00: But this is not that case anymore, because the delay rules that are under challenge here have expired. [00:14:52] Speaker 00: So there's no redressability. [00:14:54] Speaker 01: Why wouldn't that be the case in the subsequent hypothesized suit also? [00:15:01] Speaker 00: Because it wouldn't be setting aside the delay rules. [00:15:03] Speaker 00: It would be setting aside the November rule. [00:15:05] Speaker 00: on the theory, their theory, which we oppose on the merits, but don't say that they can't make it, that basically, unless the delay rules were effective, the November rule falls. [00:15:18] Speaker 00: That's their argument. [00:15:20] Speaker 00: We don't agree with it, but that's a merits argument about the November rule. [00:15:23] Speaker 00: It's not before this court, and it's not relevant to the question of whether this challenge to the delay rules. [00:15:30] Speaker 00: The Abrahams case is a case in point. [00:15:34] Speaker 00: The difference between that case and this one, and it's all the difference in the world, is that in that case, the court had the final substantive rule, the equivalent of the November rule, before it, because the plaintiffs had challenged that as well. [00:15:46] Speaker 00: And so the court did exactly what I'm saying this court could do in a future challenge. [00:15:51] Speaker 00: They considered the legality of those delaying rules as it affected the final substantive rule, which was before the court. [00:15:59] Speaker 00: Because the final substantive rule was before the court, they had redressability. [00:16:04] Speaker 00: They could set aside the final rule, which they found in that case actually did defend, on the delay rules because of an anti-backsliding provision in the substantive law. [00:16:16] Speaker 02: Mr. Welty said that in that hypothetical case, he would expect you to make an argument about presumption of regularity, something along those lines? [00:16:26] Speaker 00: There of course is a presumption of regularity, but plaintiffs are allowed to bring challenges to rebut that presumption. [00:16:33] Speaker 00: And so we've never said that they couldn't make this argument in a live case. [00:16:41] Speaker 00: They can challenge the November rule. [00:16:43] Speaker 00: They can make any arguments against its legality that they wish, unless it gets superseded. [00:16:50] Speaker 00: Because the fundamental rule is that when an agency action is superseded, then litigation over the legality is moved. [00:17:00] Speaker 02: Putting aside the November rule, what do you think are the chances that this will recur? [00:17:07] Speaker 00: The chances of critical habitat someday being amended is reasonably likely. [00:17:13] Speaker 02: And the chances of a delay rule? [00:17:15] Speaker 00: Well, see, now that's much more unlikely. [00:17:18] Speaker 02: It's happened to every administration, right? [00:17:20] Speaker 00: But not to critical habitat. [00:17:23] Speaker 00: Yes, there have been, I think, four times in the last 30 years critical habitat has been amended. [00:17:30] Speaker 00: But this is the only time that it happened on the cusp of an administration such that before it even went to an effect, it was delayed and then replaced. [00:17:42] Speaker 00: But most of the time, it doesn't happen with that precise timing. [00:17:47] Speaker 00: And there's no reason to believe that that will occur. [00:17:49] Speaker 00: Now, will there be other agencies that will publish other? [00:17:54] Speaker 00: The likelihood of some plaintiff someday challenging one of these [00:17:58] Speaker 00: Again, it is reasonably likely. [00:18:00] Speaker 00: But that's not enough to establish the capable of repetition yet evading review. [00:18:05] Speaker 00: And I would quote this court from Planned Parenthood, said, in other words, the capable of repetition exception permits adjudication of an otherwise moved case on the theory that it is capable of repetition. [00:18:18] Speaker 00: The exception does not permit the adjudication of one otherwise moved case in anticipation of a different live one. [00:18:24] Speaker 00: If the exception swept that broadly, [00:18:26] Speaker 00: will be inconsistent with the Constitution's requirements set forth in Article III. [00:18:30] Speaker 00: The courts resolve only continuing controversies between the parties. [00:18:33] Speaker 00: So the abstract issue of what they're calling a dawn delay of a midnight rule may certainly recur, but that's not enough to keep this case alive. [00:18:44] Speaker 00: And also not enough to keep this case alive. [00:18:47] Speaker 02: It does seem maybe strikingly as uncomfortable is the right word or odd. [00:18:55] Speaker 02: Imagine that you're right that the November rule is going to be valid, even if the delay rules were illegal. [00:19:04] Speaker 02: Administration after administration could do illegal delay rules. [00:19:08] Speaker 02: And so long as the substantive rule is still valid, those delay rules, illegality will never go unchecked, ever. [00:19:18] Speaker 00: Well, there's no reason to believe that all delay rules evade review. [00:19:22] Speaker 00: I'm not familiar with the last case Mr. Welty cited, but he did mention that there was a 20-month delay rule at issue in that case. [00:19:28] Speaker 00: You're not inherently evading review. [00:19:31] Speaker 00: In this particular case, the agency came out with the superseding final rule relatively quickly. [00:19:38] Speaker 00: But that is by no means typically the case for critical habitat rules. [00:19:42] Speaker 00: Or for, nor is it true that delay rules are generally short. [00:19:45] Speaker 00: I also want to respond to this argument that the fact that there were two delay rules suggests some kind of bad faith on the agency part. [00:19:53] Speaker 00: That is, the fact that there were two delay rules is a pure red herring. [00:19:57] Speaker 00: It made no difference. [00:19:59] Speaker 00: The second delay rule didn't move the first one, and we didn't argue that it did. [00:20:04] Speaker 00: It didn't move to dismiss on that grounds. [00:20:08] Speaker 00: We moved to dismiss as moved after the November rule. [00:20:11] Speaker 00: superseded the delay, and the delay rules had expired by their own terms. [00:20:17] Speaker 00: So I'm not sure that the fact is this first delay rule was short in duration for a very good reason, so that the agency could take notice and comment on whether to continue delaying it and whether to pursue a full rulemaking on [00:20:34] Speaker 00: on the critical habitat rules. [00:20:36] Speaker 00: And this is plain on the face of the rules. [00:20:38] Speaker 00: And the idea that the November rule was issued to end this litigation, this was some manipulative ploy to get out of this delay rule litigation, really makes no sense when you look at the big picture. [00:20:50] Speaker 00: Obviously, the delay rules were there to enable the agency to reconsider whether to issue what changes to make to critical habitat. [00:21:02] Speaker 00: And it's not the other way around. [00:21:04] Speaker 00: The final rule wasn't to serve the delay rules. [00:21:07] Speaker 01: Can I just ask, if there's a suit that's a challenge to the substantive bona fides of the November rule, and in that suit there's a challenge to the validity of the delay rules, [00:21:20] Speaker 01: And what you've said earlier is that that challenge to the validity of the delay rules would be resolved in the course of the challenge to the substantive validity of the November 2021 rule. [00:21:32] Speaker 01: As long as the argument was being made that, look, because the delay rules were invalid, the November 21, 2021 rule would have never come into being but for the now, we would say, punitively invalid delay rules. [00:21:47] Speaker 00: Right. [00:21:47] Speaker 00: And that would be like the April campaigns. [00:21:50] Speaker 00: where the delay rules were adjudicated in the context of a challenge to the action that they allegedly, and in that case, in fact, where the invalidity of the delay rules did take down the final rule in that case because of the anti-backsliding provision in the substantive law. [00:22:10] Speaker 00: So yes, it can be adjudicated in a live controversy in which [00:22:15] Speaker 01: Right. [00:22:16] Speaker 01: And why wouldn't a challenge to the November 2021 rule be a live controversy? [00:22:20] Speaker 00: It wouldn't be. [00:22:21] Speaker 00: I mean, unless it's filled or something. [00:22:23] Speaker 00: Yeah. [00:22:23] Speaker 01: Right. [00:22:23] Speaker 01: So I guess, just as a follow-up to Judge Walker's question, so the question was, if administration after administration is using delay rules and the delay rules are invalid, [00:22:36] Speaker 01: then is there any way that the invalidity of those delay rules will ever be adjudicated? [00:22:42] Speaker 01: And would it not be in the kind of case that we just hypothesized? [00:22:47] Speaker 00: The answer I'm trying to give to that is there's nothing inherently evading review about delay rules. [00:22:54] Speaker 00: They aren't always short. [00:22:56] Speaker 00: There have been some cases where they've gone on for several years. [00:22:59] Speaker 00: Some of the delay rules suspend a deadline indefinitely. [00:23:02] Speaker 00: These ones were short. [00:23:04] Speaker 01: Right, so that would mean that there would be a direct challenge to the delay rule itself before it expired. [00:23:11] Speaker 00: It's quite possible that somebody could challenge the delay rule and litigate it to finality. [00:23:17] Speaker 00: Moreover, in this case, they did move for a preliminary injunction, and then didn't appeal the denial. [00:23:25] Speaker 00: So I know this part has held in Newdow and in FAA versus Armstrong. [00:23:32] Speaker 00: that when that kind of plaintiff requests preliminary injunctive relief in the district court and then does not appeal it, that is also a reason for finding that it does not evade review. [00:23:42] Speaker 00: But ultimately, this case does not evade review because they didn't appeal the preliminary injunction, because delay rules don't inevitably evade review. [00:23:54] Speaker 00: They're not inevitably of short duration. [00:23:56] Speaker 00: And finally, because review is available in a challenge to the final November [00:24:01] Speaker 01: Review of the delay rules is available. [00:24:04] Speaker 01: Review of the delay rules is available. [00:24:07] Speaker 00: Yes, insofar as they affect the validity of the November rule. [00:24:17] Speaker 02: If they did not affect the validity of the November rule, then the validity of the delay rule could not be challenged in a challenge to the November rule. [00:24:28] Speaker 00: I'm sorry. [00:24:28] Speaker 00: I was making it very hard. [00:24:30] Speaker 02: So imagine a challenge to the November rule. [00:24:34] Speaker 02: Yeah. [00:24:34] Speaker 02: And imagine that the validity of the November rule does not depend on the validity of the delay rules. [00:24:42] Speaker 02: If that's the case, then the validity of the delay rules could not be challenged in a challenge to the November rule. [00:24:51] Speaker 00: No. [00:24:51] Speaker 00: No. [00:24:52] Speaker 00: I mean, if it's not relevant to the issues, the validity of the live agency act, [00:24:58] Speaker 00: then it wouldn't be an issue in that case. [00:24:59] Speaker 02: And you say no, no, but you mean you're agreeing with what I said. [00:25:05] Speaker 00: I hate to say I agree when it's not touching everywhere because of the echoes. [00:25:09] Speaker 00: Sorry. [00:25:09] Speaker 00: I'm so sorry about that. [00:25:11] Speaker 00: But yes, the issue can only be adjudicated in a case in which it is relevant to the validity of the action under review. [00:25:22] Speaker 01: And can I just, I'm just trying to understand [00:25:28] Speaker 01: If the, what does it mean that the delay rule validity is relevant to the validity of the ultimate rule? [00:25:35] Speaker 01: Suppose the argument is that the ultimate rule would have never come into being if the invalid delay rules hadn't been in place. [00:25:45] Speaker 01: And they should have never been in place because they're procedurally invalid. [00:25:48] Speaker 01: They were adoptive without notice and comment or something like that. [00:25:52] Speaker 01: And that's asserted to be the relevance to the, [00:25:56] Speaker 01: ultimate rule is that, well, the ultimate rule just wouldn't have come around. [00:26:01] Speaker 01: Is that relevant? [00:26:02] Speaker 01: I mean, is that the kind of relevance you're talking about? [00:26:04] Speaker 00: These arguments, the hypothetical arguments, will have varying degrees of strength, right? [00:26:09] Speaker 00: In Abraham, it was very strong because the substantive statute said you can't loosen the rules, you can only tighten them. [00:26:15] Speaker 00: In this case, they have an argument that the, you've heard them speak, you know they're [00:26:25] Speaker 00: that the November rule depends on the number of acres of critical habitat that were already designated. [00:26:34] Speaker 00: And what that number is depends on whether the January rule ever went into effect. [00:26:42] Speaker 00: In litigation over the November 2021 rule will be the opportunity for a court to decide whether that's correct, whether it really does. [00:26:50] Speaker 00: And if the court thinks it does depend, then it will have to decide whether the January rule [00:26:54] Speaker 00: went into effect, but that's not an issue for this court. [00:27:00] Speaker 00: So yes, a very far-fetched rule about a long series of events that might never have happened might not be a relevant issue for a court to decide. [00:27:10] Speaker 00: But in this case, I don't think there's any. [00:27:13] Speaker 00: We certainly wouldn't argue that they can't make that argument. [00:27:17] Speaker 00: Though it does not make any sense. [00:27:21] Speaker 00: Well, we ask that the court affirm the district court's correct judgment. [00:27:25] Speaker 01: Thank you, Miss Peppin. [00:27:29] Speaker 01: Mr. Welty will give you two minutes for rebuttal. [00:27:40] Speaker 03: Thank you, Your Honors. [00:27:42] Speaker 03: The defendant's argument here would render the continuing consequences doctrine nullity. [00:27:47] Speaker 03: This court has repeatedly held that we're an expired or superseded rule or action has continuing effects. [00:27:54] Speaker 03: The challenge to that action is not moved. [00:27:59] Speaker 03: I'd like to address to the fact, well, on that point, there shouldn't be any surprise that the delay rules have continuing effect, because that's exactly what they were intended to do. [00:28:09] Speaker 03: were intended to prevent the prior rule from going into effect before the agency had time to review and replace it, so that it didn't change the critical habitat designation for northern slotted owl when it subsequently acted. [00:28:22] Speaker 03: I'd briefly address the argument under NUJAL. [00:28:25] Speaker 04: Council, why doesn't that tell us just that the continuing effect continued until the final rule was issued? [00:28:32] Speaker 04: Why is that still a continuing effect? [00:28:34] Speaker 03: It's a continuing effect because like in Reno be both your parish school board and like in Abraham and like an energy see the EPA that delay rules the prior rule had set the baseline for the subsequent action. [00:28:50] Speaker 03: And it was a three and a half million acre difference. [00:28:53] Speaker 03: We pointed out that's the size of Connecticut. [00:28:55] Speaker 03: It affects the party's rights. [00:28:56] Speaker 03: It affects the obligations that the service had. [00:29:00] Speaker 03: You're issuing that subsequent rule. [00:29:02] Speaker 03: This rule is absolutely a live one presented by adverse parties for decision here. [00:29:08] Speaker 03: And that's enough for the district court to at the very least issued declaratory relief that the prior administration's rule went into effect. [00:29:16] Speaker 03: We can take that ticket into it. [00:29:18] Speaker 02: It just seems like that's an advisory opinion for the benefit of a challenge to the November rule. [00:29:27] Speaker 03: It is not advisory because it decides a real issue that has a more than speculative chance of affecting the party's rights. [00:29:36] Speaker 03: It presently affects them. [00:29:38] Speaker 02: It means that the foundation of the subsequent rule... I don't see how it does because it doesn't make you any better off. [00:29:45] Speaker 02: The November rule would still be in effect until the November rule is challenged. [00:29:50] Speaker 03: Again, I think that the district court would have authority in finding an agency action unlawful to affect injunctive relief and decide whether an agency action that is then taken based on that action. [00:30:06] Speaker 02: So you think the district court could enjoin the November rule? [00:30:10] Speaker 03: NRDC v. Abraham, just to provide an example, [00:30:14] Speaker 02: I think that that was a challenge to the final rule and the delay rule at the same time. [00:30:19] Speaker 03: They were consolidated. [00:30:21] Speaker 03: But what the court decided was that the delay rules were unlawful, and it set them aside. [00:30:27] Speaker 03: and it declared that the prior administration's rule went into effect. [00:30:32] Speaker 02: In a suit where the validity of the final rule was an issue. [00:30:35] Speaker 03: Maybe we have to go and file another suit, but that just goes to show again that the same issue is going to be presented here. [00:30:42] Speaker 03: There is an ongoing position or policy, right, that the prior administration's rule didn't take effect. [00:30:49] Speaker 03: That's presented by the parties here in a challenge to the rules [00:30:54] Speaker 03: that purports to have prevented the prior administration's rule. [00:30:59] Speaker 03: So it makes much more sense for a court to decide the validity of the delay rules in a challenge to the delay rules. [00:31:06] Speaker 03: The fact that the next rule depends on those delay rules goes to show that the continuing and collateral consequences doctrine apply. [00:31:17] Speaker 02: Do you know where a challenge to the November rule would be filed? [00:31:22] Speaker 02: I could have looked this up, but would it be in our court or would it be in a different court? [00:31:26] Speaker 03: It would be in district court. [00:31:28] Speaker 03: And that's one thing that- In DDC? [00:31:30] Speaker 03: In DDC. [00:31:31] Speaker 03: Would be related, I'm sure, to the existing cases. [00:31:34] Speaker 03: Again, it would take a very long time for it, based on past practice, for it to be decided. [00:31:41] Speaker 03: Whereas if we were to get a declaratory relief on an issue that affects our rights now, we could, if necessary, if the agency doesn't do the right thing, as we put it, as we see it at least, file a subsequent suit. [00:31:55] Speaker 02: You have no, I think you have no precedent where there was a challenge to something other than the final rule. [00:32:05] Speaker 02: You have no precedent where there was a challenge to a delay rule that did not include a challenge to the final rule. [00:32:12] Speaker 02: And the relief afforded was an invalidation or injunction against the final rule. [00:32:23] Speaker 03: We have studied it to precedent where a challenge to one rule affected the validity of the subsequent rule. [00:32:33] Speaker 02: But that was one substantive rule. [00:32:36] Speaker 03: A subsequent rule and also a subsequent delay rule. [00:32:39] Speaker 03: So NRDC, the EPA, the court found that the challenge to the first delay rule meant that the subsequent delay rules, which depended on the first delay rule, were also invalid. [00:32:51] Speaker 03: Again, this just goes to show that declaratory relief here is available because it would affect the party's rights. [00:32:58] Speaker 03: There's a real dispute between adverse parties that continues in a subsequent action and continues in an ongoing position or policy. [00:33:07] Speaker 03: that the prior administration's rule never took effect. [00:33:10] Speaker 03: And just finally, Your Honor, I would like to point out in response to the argument under Newdow and Armstrong that this case is controlled by Rawls, which is cited in the brief, and not by those cases. [00:33:20] Speaker 03: Rawls presented a short-term delay like these. [00:33:23] Speaker 03: Evade's review means evade's review by the Supreme Court. [00:33:25] Speaker 03: There is no way we could have gotten to the Supreme Court if we had pressed our aye motion, which wasn't even decided on that. [00:33:33] Speaker 01: All right, let me make sure there's no further questions. [00:33:35] Speaker 01: Thank you, counsel. [00:33:36] Speaker 01: Thank you to both counsel. [00:33:37] Speaker 01: We'll take this case under submission.