[00:00:00] Speaker 01:
Her next case for argument is 14-5150, harness versus United States.

[00:00:10] Speaker 01:
Mr. Elderschick.

[00:00:13] Speaker 01:
Mr. Elderschick.

[00:00:13] Speaker 01:
Adelph, you've got to help me with this.

[00:00:17] Speaker 01:
Adelph.

[00:00:18] Speaker 01:
Please proceed when you're ready.

[00:00:20] Speaker 03:
Thank you, Your Honor.

[00:00:21] Speaker 03:
May it please the court.

[00:00:24] Speaker 03:
The court should vacate the judgment because the trial court did not possess jurisdiction

[00:00:29] Speaker 03:
to entertain this bid protest regarding cooperative agreements.

[00:00:34] Speaker 03:
There is an important place for cooperative agreements in federal contracting, and the FGCAA, which has been on the books since the 1970s, establishes when agencies should use cooperative agreements versus grants versus procurements.

[00:00:50] Speaker 03:
And even in CMS, a case where the government ultimately lost, even CMS

[00:00:56] Speaker 03:
recognized that cooperative agreements are not subject to procurement law and procedure.

[00:01:02] Speaker 03:
So in this case, the trial court erred when it rejected the dichotomy between cooperative agreements and procurements for purposes of the Tucker Act.

[00:01:14] Speaker 03:
Now, the Tucker Act limits statutory bid protest jurisdiction to procurements.

[00:01:20] Speaker 03:
And this provision of the Tucker Act came into being in 1996

[00:01:25] Speaker 03:
When Congress was legislating against the backdrop of the FGCAA.

[00:01:31] Speaker 01:
Can we step back for a minute and talk a little about CMS?

[00:01:35] Speaker 01:
Certainly.

[00:01:35] Speaker 01:
Why is this different?

[00:01:37] Speaker 01:
In CMS, they said this is a procurement contract.

[00:01:39] Speaker 01:
The government's getting a benefit from it, right?

[00:01:42] Speaker 01:
Why is this demonstrably different from that?

[00:01:45] Speaker 01:
The government here was getting a benefit, right?

[00:01:49] Speaker 01:
They have a statutory obligation to feed these birds or whatever is happening here.

[00:01:53] Speaker 01:
and they got the benefit through these cooperative arrangements to make sure that happened, right?

[00:01:58] Speaker 03:
The answer to your question, Your Honor, is found in the touchstone of the FGCA, which is the principal purpose test, which says that if the principal purpose of the relationship between the agency and the contracting party is to acquire goods or services for the direct benefit and use

[00:02:23] Speaker 03:
of the agency, that is a procurement.

[00:02:26] Speaker 03:
And that's what the court found in CMS.

[00:02:29] Speaker 03:
Based on the particular record evidence in that case, there was evidence that the government was essentially outsourcing contracting officer duties to a third party to save the government from having to do that work itself.

[00:02:45] Speaker 03:
In this case, what we have is the most indirect of all benefits.

[00:02:51] Speaker 03:
that could be said of any cooperative agreement, which is that the government could be doing what the cooperator is doing, and the cooperative agreement furthers the agency's overall mission.

[00:03:06] Speaker 03:
That is the case in every single cooperative agreement and cannot be, under the FGCEA's principal purpose test, the kind of direct benefit

[00:03:18] Speaker 03:
a direct tangible benefit to the agency.

[00:03:20] Speaker 01:
Why is the agency entering into these cooperative agreements?

[00:03:23] Speaker 03:
Because Congress has recognized that in this era of limited budgets, that the conservation of wildlife resources on wildlife refuges is of sufficient importance that the agency has been specifically granted authority to enter into cooperative agreements

[00:03:45] Speaker 03:
for the purpose of stimulating private conservation activity to further the statutory goal.

[00:03:54] Speaker 03:
And that's the principal purpose.

[00:03:55] Speaker 03:
Indeed, the only purpose of these cooperative agreements is to stimulate the private activity to further the federal statutory goal of wildlife conservation.

[00:04:07] Speaker 00:
Now, the court below at page JA 32 through 33 specifically said that the administrative record demonstrates

[00:04:15] Speaker 00:
service contracted with farmer cooperators, not to benefit them financially, but to obtain their services to provide food for migratory birds and wildlife in exchange for farmers' personal use of public-owned land.

[00:04:29] Speaker 00:
So the corporal looked at the administrative record and came to the conclusion that the principal purpose was something other than what you're saying today.

[00:04:38] Speaker 00:
Do we review that?

[00:04:40] Speaker 00:
Is that a fact finding?

[00:04:41] Speaker 00:
How do we review that?

[00:04:43] Speaker 00:
Under what standards?

[00:04:44] Speaker 03:
Actually, Your Honor, I would submit that that particular finding supports that the principal purpose was to stimulate the private cooperators to engage in the conservation activity to further the federal statutory goal.

[00:05:02] Speaker 00:
Okay.

[00:05:02] Speaker 00:
I understand your answer, but can you answer my question, which is, are these the statute findings and what's the standard of review?

[00:05:09] Speaker 03:
Well, the question of whether the principal purpose of the relationship is a question of fact that the trial court did not make any specific fact finding about the agency's principal purpose because the agency, I'm sorry, the trial court refused to recognize the dichotomy between

[00:05:37] Speaker 03:
cooperative agreements and procurements for purposes of the Tucker Act.

[00:05:41] Speaker 03:
So what the trial court should have done was it should have reviewed, under a rational basis standard of review, the agency's policy judgment about what was the most appropriate instrument to use in light of the agency's principal purpose in entering into the relationship.

[00:05:59] Speaker 00:
Oh, I want to make sure I understand.

[00:06:01] Speaker 00:
You're saying that the question of what is the principal purpose is a question of fact.

[00:06:05] Speaker 03:
It is a jurisdictional fact.

[00:06:07] Speaker 00:
It's a question of fact that's based on the record below.

[00:06:10] Speaker 00:
Yes, indeed, Your Honor.

[00:06:12] Speaker 03:
And the only principal purpose that's apparent on this record is to stimulate these private cooperating farmers to engage in conservation activity to further the overall statutory goal of wildlife conservation on refuges.

[00:06:33] Speaker 02:
This sort of approach goes back to

[00:06:36] Speaker 02:
Teddy Roosevelt, doesn't it?

[00:06:37] Speaker 02:
I mean, this government encouragement of private use in order to facilitate a public end.

[00:06:54] Speaker 03:
The Coordination Act goes back, I believe, to the 1930s.

[00:06:58] Speaker 03:
Yes, Your Honor.

[00:06:59] Speaker 03:
It does.

[00:07:00] Speaker 02:
But prior to that, the establishment of

[00:07:04] Speaker 02:
The Department of the Interior, for example, which even predates Roosevelt and the National Park Service and so on.

[00:07:13] Speaker 02:
The logging policy introduced in the first Roosevelt administration, all of that is about public-private cooperation where, for example, logging is done in a fashion such that

[00:07:34] Speaker 02:
the land can be used repeatedly in a beneficial fashion.

[00:07:40] Speaker 03:
There is undoubtedly, Your Honor, a long history of government encouraging private and public partnerships to conserve wildlife and our nation's natural resources.

[00:07:57] Speaker 03:
Renewable resources.

[00:07:59] Speaker 03:
That's right.

[00:07:59] Speaker 03:
And this case has major consequences for

[00:08:03] Speaker 03:
contract administration throughout the federal government because procurements are governed by one body of law, principally CICA and the FAR, and assistance agreements, like cooperative agreements, are governed by a separate body of law, largely found in Title II of the CFR.

[00:08:21] Speaker 03:
And this is going to relate, for example, to grazing rights, isn't it?

[00:08:24] Speaker 03:
It very well could, Your Honor.

[00:08:27] Speaker 03:
And Congress intended for agencies to

[00:08:30] Speaker 03:
exercise discretion in making these policy judgments about which path to choose, the procurement path or the cooperative agreement path.

[00:08:39] Speaker 03:
And the trial court's decision curtailed that discretion by making virtually any cooperative agreement subject to procurement law and procedure.

[00:08:47] Speaker 01:
Can I ask you about that just following up?

[00:08:49] Speaker 01:
Can you just talk a little about the relief, in particular relief granted in this case, the injunction and how that works?

[00:08:58] Speaker 01:
and what the consequences would be if we were to affirm the judgment below in terms of government law, the kinds of contracts that would be affected and what would need to be done.

[00:09:09] Speaker 03:
If the court were to affirm the judgment below, then it is essentially open season on cooperative agreements and grants in the Court of Federal Claims.

[00:09:18] Speaker 01:
Now, we're not suggesting that those... Firstly, with respect to this case, the relief here doesn't abrogate

[00:09:27] Speaker 01:
The ongoing agreement now, right?

[00:09:29] Speaker 01:
It waits until the agreement expires or what happens here?

[00:09:34] Speaker 03:
No, Your Honor.

[00:09:35] Speaker 03:
Actually, there was a mandatory injunction ordering the agency to terminate the cooperative agreements to cease entering into cooperative agreements and to only use procurements going forward.

[00:09:47] Speaker 01:
What's the range of that?

[00:09:48] Speaker 01:
The cooperative agreement that's challenged here plus every other cooperative agreement entered into under the statutory provision?

[00:09:57] Speaker 01:
scope of this injunction?

[00:09:58] Speaker 03:
The scope of the injunction pertained to the two wildlife refuges at issue, McNary and Umatoga Wildlife Refuges.

[00:10:08] Speaker 01:
Is the practice that's been followed by the government with respect to these refuges the same that's followed nationally?

[00:10:15] Speaker 01:
Are there other refuges?

[00:10:17] Speaker 01:
I mean, what's at stake here in terms of the more global picture?

[00:10:20] Speaker 03:
There are cooperative farming agreements on more than 100 wildlife refuges across the United States.

[00:10:27] Speaker 02:
They follow the national flyways, do they not?

[00:10:30] Speaker 03:
I'm sorry.

[00:10:31] Speaker 02:
They follow the national flyways of game birds.

[00:10:35] Speaker 03:
Yes, the migratory birds, especially Canadian geese, are implicated here.

[00:10:42] Speaker 01:
But forgetting the havoc this may or may not create, because the government has taken one task and now someone might say that that's the wrong task.

[00:10:54] Speaker 01:
If it were at the get-go, what are the hazards?

[00:10:57] Speaker 01:
Why wouldn't the government necessarily be able to achieve the results of this program by going out and doing procurement, doing this?

[00:11:05] Speaker 03:
Procurements, taking the example of this case, are a very poor fit for this particular program because there is substantial involvement in the performance process where the government

[00:11:20] Speaker 03:
is involved in decision making about what plants to crop and when to harvest them and how to tend them.

[00:11:28] Speaker 03:
And all those decisions that go into the performance process, those would conceivably be changes under a changes clause under the FAR in a procurement context where the government is going to be liable for changing the terms of

[00:11:49] Speaker 03:
performance every time that you need to resort to flexibility in administering this important conservation program.

[00:11:57] Speaker 01:
Okay, so let me just see if I understand.

[00:11:58] Speaker 01:
You're saying that there's no way that a bid up front could sufficiently, or the task orders that you put out could sufficiently identify all the exigencies that might occur during the life of this process.

[00:12:10] Speaker 01:
So you need the flexibility during the life of this process to, right?

[00:12:16] Speaker 03:
Indeed.

[00:12:18] Speaker 03:
any host of permutations in the world of government contracting, where the government needs flexibility in order to administer federal statutes and achieve federal statutory goals.

[00:12:32] Speaker 01:
Why don't we hear from the other side?

[00:12:34] Speaker 01:
Thank you.

[00:12:41] Speaker 04:
May it please the court, my name is James Schaefer and I represent the Epley J. Hymas.

[00:12:46] Speaker 04:
I'd like to start by answering Judge Stoll's question.

[00:12:49] Speaker 04:
The standard review is clear error, whether the Court of Federal Claims decision that the principal purpose of these agreements was to acquire properties and services reviewed for clear error.

[00:13:01] Speaker 00:
The government has said that the court below didn't identify the principal purpose.

[00:13:06] Speaker 00:
What is your position in response to that?

[00:13:08] Speaker 04:
I believe the court below's discussion of this court's decision in CMS indicates a finding that the principal purpose was

[00:13:16] Speaker 04:
them to acquire property and services, specifically farming services and ultimately crops that the government used for its direct benefit by feeding them to migratory birds.

[00:13:28] Speaker 01:
I'm a little unclear on something.

[00:13:29] Speaker 01:
Maybe it's just me.

[00:13:30] Speaker 01:
Why is, why this is a question that's reviewed for clear error?

[00:13:34] Speaker 01:
I mean, to ascertain what the purpose is, you look at the statute, you look at the legislative history.

[00:13:42] Speaker 01:
Why isn't construing that purely a question of law?

[00:13:46] Speaker 01:
Why are you saying it's a question of fact that was reviewed for clear error?

[00:13:49] Speaker 04:
Yes, your honor.

[00:13:51] Speaker 04:
Whether an agreement is a procurement contract or a cooperative agreement is a question of law.

[00:13:58] Speaker 04:
The underlying factual finding as to what the government's purpose was in entering the agreement, I believe is a factual question to be reviewed.

[00:14:06] Speaker 01:
What are we looking to to determine what the government's purpose is?

[00:14:10] Speaker 01:
So aren't we looking at a statute?

[00:14:13] Speaker 04:
No, Your Honor, what we're looking at in this instance is a combination of statutes that set up the National Wildlife Refuge System.

[00:14:22] Speaker 04:
He ordered the Secretary of Interior, later the Fish and Wildlife Service, to fulfill that mission, one of which was to provide for the conservation of migratory birds.

[00:14:36] Speaker 04:
At that step, then you move into the next requirement, which was to enact a comprehensive

[00:14:44] Speaker 04:
conservation plan.

[00:14:45] Speaker 04:
In this case, the service enacted that plan.

[00:14:48] Speaker 04:
The statute requires that it follow that plan.

[00:14:51] Speaker 04:
And that plan set out a number of alternatives, one of which was alternative two, which was adopted by the service.

[00:15:01] Speaker 04:
And alternative two required that the service follow all the stipulations in the forming compatibility determination in the comprehensive

[00:15:13] Speaker 04:
conservation plan.

[00:15:14] Speaker 04:
So it's a mix of statutes as well as actions taken by the Fish and Wildlife Services that indicate that farming within the refugees is done to fulfill a statutory mandate, a mandate to provide for conservation principally of migratory birds.

[00:15:34] Speaker 04:
The service also for both refuges enacted cross-land management plans.

[00:15:40] Speaker 04:
which recognized there was no other means to fulfill the mission other than crop farming.

[00:15:45] Speaker 04:
And those plans lay out three possible alternatives for fulfilling the agency's services statutory mandate, one of which was forced account farming, so that the service would use its own personnel to conduct the farming

[00:16:03] Speaker 04:
The second alternative was a straight contract farming.

[00:16:06] Speaker 04:
Hire a farmer, pay him to grow crops for the use in feeding migratory birds.

[00:16:13] Speaker 04:
And the third alternative was what was actually adopted, which is the cooperative farming agreement program under which the service contracts with farmers to grow crops on national wildlife refuge land in exchange for a crop sharing.

[00:16:32] Speaker 04:
Farmer typically receives 75% of the crop and the service receives 25% of the crop, which it uses to feed birds.

[00:16:42] Speaker 04:
It's left in the field.

[00:16:44] Speaker 04:
It's left in the field.

[00:16:45] Speaker 04:
And that's where the court of federal claims finding is based is based on what the agency actually did.

[00:16:52] Speaker 02:
The court of claims relies substantially upon the definition of procurement in 41 USC 111.

[00:17:01] Speaker 02:
and on CMS, which cites 111 approvingly, to hold that CFAs are procurements.

[00:17:12] Speaker 02:
But it doesn't consider other definitions in related statutes, such as, for example, the FGCAA.

[00:17:22] Speaker 02:
And you offer the same approach in your brief.

[00:17:24] Speaker 02:
You don't consider those other definitions.

[00:17:27] Speaker 02:
Can you cite any authority for the proposition that

[00:17:31] Speaker 02:
Section 111 is the only dispositive source for our inquiry.

[00:17:38] Speaker 04:
There's two issues there, Your Honor.

[00:17:41] Speaker 04:
The first is yes, I believe I can say authority.

[00:17:44] Speaker 04:
Okay.

[00:17:44] Speaker 04:
And that is this court's decision in resource conservation where this court actually adopted, I'm sorry, in district.

[00:17:54] Speaker 02:
Remember I used the word only.

[00:17:56] Speaker 02:
The only dispositive source for our inquiry.

[00:18:00] Speaker 04:
Well, I think one panel of this court has in fact adopted a definition, which should be followed by other panels of this court.

[00:18:09] Speaker 04:
I cannot point to any portion of the tuck track that says you must use this definition.

[00:18:15] Speaker 02:
Well, my problem is that there's a well-established canon that we shouldn't render statutory language superfluous, and you have language in the FGCAA that conflicts.

[00:18:29] Speaker 02:
What do you do about this?

[00:18:32] Speaker 04:
Your honor, I disagree that there's any language in the FGCA that conflicts.

[00:18:36] Speaker 04:
First, the FGCA doesn't provide a definition of procurement.

[00:18:40] Speaker 04:
What it does is provide guidance as to when the government must use a particular legal instrument, a procurement contract.

[00:18:48] Speaker 04:
This court has already addressed what the scope of the Court of Federal Claims jurisdiction under the Administrative Dispute Resolution Act of 1996 was.

[00:18:57] Speaker 04:
And when it did so in resource conservation, and this is a quote, the ADR expanded the jurisdiction of the court of federal claims to hear bid protest cases, ultimately giving the court exclusive jurisdiction to review the full range of procurement protest cases previously subject to review in the federal district courts.

[00:19:17] Speaker 04:
That raises what was the scope of the federal district courts to hear bid protest cases.

[00:19:24] Speaker 04:
And this court has addressed that in a number of

[00:19:27] Speaker 02:
The FGCAA defines cooperative agreements, for example, right?

[00:19:34] Speaker 04:
I don't believe it defines cooperative agreements, Your Honor.

[00:19:36] Speaker 04:
It indicates when one must be used.

[00:19:41] Speaker 04:
And I also don't believe it's a conflict between the FGCAA's use of the term procurement contract and the use of procurement in the Tucker Act because there are two distinct terms.

[00:19:55] Speaker 04:
There is no, as the government has argued, there is no discord between them.

[00:19:59] Speaker 04:
This court should give consideration to Congress's use of different terms in different statutes.

[00:20:07] Speaker 04:
The federal district courts had jurisdiction under what was called the Scanwell line of cases.

[00:20:13] Speaker 04:
In Scanwell, the United States Court of Appeals for the District of Columbia held it under the Administrative Procedures Act.

[00:20:23] Speaker 04:
that disappointed bidders had standing to raise bid protests in district courts, departing somewhat from the Supreme Court's earlier decision in Perkins versus Luke and Steele, where the Supreme Court held that disappointed bidders did not have standing because the government procurement laws were an act to protect the government, not the bidders.

[00:20:46] Speaker 04:
In 1948, the Congress enacted the Administrative Procedures Act,

[00:20:51] Speaker 04:
Subsequently, in 1970, the Scanwell Court interpreted that to provide standing to disappointed bidders to challenge... Yes, Your Honor, I just had a question.

[00:21:06] Speaker 02:
Yeah, I'm going to back you up.

[00:21:09] Speaker 02:
The FGCAA distinguishes procurement contracts from cooperative agreements, 6303 and 6305.

[00:21:21] Speaker 02:
explaining when executive agencies should use cooperative agreements, so it does define them.

[00:21:30] Speaker 02:
It sets the circumstances under which one should be used, but I don't see looking at six... An executive agency shall use a cooperative agreement when one, the principal person of the relationship is to transfer a thing of value to the recipient to carry out a public purpose of support or

[00:21:52] Speaker 02:
stimulation authorized by the law of the United States and instead were acquiring by purchase, lease, or barter property or services for the direct benefit or use of the United States.

[00:22:01] Speaker 02:
And two, substantial involvement is expected between the executive agency and the state, local government, or other recipients.

[00:22:09] Speaker 04:
Yes, Sean.

[00:22:09] Speaker 04:
I read that as, and it's correlated 6303 on procurement contracts, as setting out when the government must use a particular legal instrument.

[00:22:22] Speaker 04:
The FGCAA was enacted in 1978.

[00:22:28] Speaker 04:
So it was on the books when the Administrative Dispute Resolution Act was enacted in 1996.

[00:22:35] Speaker 04:
Yet Congress chose not to define the scope of the Court of Federal Claims as jurisdiction using the term procurement contract.

[00:22:43] Speaker 04:
It used the term procurement, a distinct term.

[00:22:47] Speaker 04:
This Court has held that

[00:22:49] Speaker 04:
in connection with a proposed procurement is sweeping.

[00:22:56] Speaker 04:
And the existing jurisdiction of district courts to hear bid protest cases could not have been constrained by the Federal Grant Cooperative Agreement Act.

[00:23:05] Speaker 04:
That wasn't enacted until 1978.

[00:23:08] Speaker 04:
Scandal predates that by eight years.

[00:23:10] Speaker 04:
This court has already held that the court of federal claims has jurisdiction, exclusive jurisdiction, to hear the full range of cases

[00:23:18] Speaker 04:
previously heard in the district courts.

[00:23:24] Speaker 01:
Tell us about CMS.

[00:23:25] Speaker 01:
You presumably think that it covers your case.

[00:23:28] Speaker 01:
You heard what the government said about it.

[00:23:30] Speaker 04:
I do, Your Honor.

[00:23:31] Speaker 04:
CMS discusses what the result should be when the government establishes an intermediary relationship where the government has a statutory obligation to perform some function and enlist the aides of third parties

[00:23:48] Speaker 04:
in the performance of that function.

[00:23:51] Speaker 04:
The Court of Federal Claims held that this case is analogous to CMS because what it recognized was that the service had a statutory obligation to provide for the conservation of wildlife, including the feeding of migratory birds, that the service could have performed that function itself, if I contemplated doing so, but for budgetary reasons,

[00:24:17] Speaker 04:
opted to enlist the aid of third parties, cooperative farmers, to fulfill that mission.

[00:24:27] Speaker 04:
And so under this court's holding in CNS, that would be a circumstance in which the principal purpose was to acquire property services for the direct benefit and use of the government.

[00:24:39] Speaker 04:
The direct benefit is that the government did not have to use its own personnel at a greater cost to perform that function

[00:24:46] Speaker 04:
And ultimately what's being acquired here is crops, which the government uses by leaving them in the fields to feed migratory birds.

[00:24:55] Speaker 00:
Would the outcome change if the third parties, instead of being farmers, were something like Sierra Club, a group that was volunteering to provide services for the purpose of feeding the migratory birds?

[00:25:10] Speaker 04:
The key there, Your Honor, is the volunteer aspect of that.

[00:25:14] Speaker 04:
Now under the National Wildlife Refugee and Volunteer Act, both the 1998 Act and the 2004 Act, the government does have, or the service does have, authority in a cooperative agreement with private organizations and individuals.

[00:25:33] Speaker 04:
But that authority is limited to the volunteer context.

[00:25:38] Speaker 04:
So I think the key there, Your Honor, the answer is yes, that would be different.

[00:25:42] Speaker 04:
because it's a voluntary program.

[00:25:44] Speaker 04:
That's not what's evidence in the record here, not what the Court of Federal Affairs found.

[00:25:47] Speaker 00:
So if Sierra Club was not doing it in voluntary capacity, you would see that as being no different than the situation where the third party is a farmer.

[00:25:56] Speaker 04:
If the Sierra Club was engaged in commercial farming for profit in national wildlife, refuge lands, we would view that as different, and we would view that as requiring a competitive process before the award of that agreement.

[00:26:11] Speaker 02:
How many?

[00:26:11] Speaker 02:
other types of cooperative agreements will this affect?

[00:26:21] Speaker 02:
We ask that question of the government.

[00:26:23] Speaker 04:
Well, at the outset, I don't agree that these are cooperative agreements.

[00:26:26] Speaker 04:
They are procurement contracts.

[00:26:28] Speaker 04:
And that's a question of all.

[00:26:33] Speaker 04:
In CMS, the government tried to characterize the agreements as cooperative agreements

[00:26:37] Speaker 04:
what the court out is, no, they're actually procurement agreements.

[00:26:39] Speaker 04:
OK, but that's semantics.

[00:26:41] Speaker 01:
Let's assume, I mean, I think the question built in, that let's assume that what the government now erroneously, in your view, calls cooperative agreements or really procurement agreements.

[00:26:50] Speaker 01:
What's the answer to DeGualt's question?

[00:26:52] Speaker 04:
It would affect those instruments called cooperative agreements that have a principal purpose of acquiring property and services for direct benefit or use of the government.

[00:27:03] Speaker 04:
I think that's a factual question that will need to be answered.

[00:27:06] Speaker 04:
on a case-by-case basis.

[00:27:08] Speaker 02:
All the crop grazing agreements, for example.

[00:27:12] Speaker 04:
I believe, and it's not an area I've looked at recently, I believe the grazing is conducted pursuant to special use permits, which can be, depending on the circumstances, another form of contract.

[00:27:24] Speaker 04:
But I don't believe that the grazing permits are enacted for the direct use and benefit of the government.

[00:27:32] Speaker 04:
They allow private citizens to use federal land

[00:27:36] Speaker 04:
for their own purposes.

[00:27:38] Speaker 04:
I'm not sure that grazing actually furthers the mission of the Bureau of Land Management.

[00:27:43] Speaker 02:
It depends whether it's done properly or not.

[00:27:48] Speaker 04:
I'm not aware of any statute that requires the Bureau of Land Management to make land available for grazing for its own benefit.

[00:27:59] Speaker 04:
Okay.

[00:27:59] Speaker 04:
Thank you.

[00:28:07] Speaker 03:
I'd just like to make a couple of very quick points.

[00:28:11] Speaker 03:
First, with respect to the statutory mandate argument that was just made, there is no statutory mandate to farm any particular refuge land or to feed any particular birds.

[00:28:22] Speaker 03:
The statutory scheme specifically in the Coordination Act gives the agency the option of proceeding either directly administering this public land or to use cooperative agreements.

[00:28:36] Speaker 03:
and in the Fish and Wildlife Act that was discussed earlier, Congress specifically gave extremely broad cooperative agreement authority to the agency for using cooperative agreements in the context of refuge projects.

[00:28:52] Speaker 03:
There is no volunteer requirement in connection with that statute.

[00:28:57] Speaker 03:
It was part of the Volunteer and Community Partnerships Enhancing Act.

[00:29:01] Speaker 01:
I'm looking at the right statute and it's

[00:29:03] Speaker 01:
The 1998, is it 16742?

[00:29:05] Speaker 01:
Yes, 742F, little f. All right, maybe I have the wrong provision.

[00:29:12] Speaker 01:
It seems to me it says it's cooperative agreements in accordance with the purposes of the subsection.

[00:29:17] Speaker 01:
And then I have a provision of the subsection which says encouraging volunteers.

[00:29:24] Speaker 03:
Am I looking at the wrong thing?

[00:29:26] Speaker 03:
In addition to community partnerships,

[00:29:29] Speaker 03:
which this is exactly the kind of community partnership that Congress had in mind, was the agency partnering with private farmers to stimulate the private activity to further the federal statutory goal.

[00:29:47] Speaker 03:
Also, Judge Wallach, with respect to your question about whether there's any authority that

[00:29:53] Speaker 03:
Section 111 is the be-all and end-all of Tucker Act jurisdiction with respect to the meaning of the term procurements.

[00:30:02] Speaker 03:
Distributed solutions borrowed from Section 111 in Title 41.

[00:30:08] Speaker 03:
But it never said that that was the exclusive source, the only place that the Congress had spoken about the concept of procurements.

[00:30:17] Speaker 03:
And in fact, prior to the passage of that provision, you had the FGCAA, which made the clear distinction

[00:30:23] Speaker 03:
between cooperative agreements and procurements.

[00:30:26] Speaker 03:
Also, the argument was made, well, the Tucker Act says in connection with a procurement, but the FGCAA speaks to procurement contracts.

[00:30:36] Speaker 03:
Well, what else would you be talking about in the context of Tucker Act jurisdiction, protesting an award in connection with a procurement, if not a procurement contract?

[00:30:47] Speaker 03:
So that is a distinction without a difference.

[00:30:51] Speaker 03:
With respect to the principal purpose, I would just like to impress upon the court that this is something that Congress intended to be a basic policy-level decision for the agency to exercise its discretion.

[00:31:08] Speaker 03:
And that question, that fact question, should have been reviewed on a rational basis standard by the trial court.

[00:31:15] Speaker 03:
The trial court did not do that in this case and supplanted its judgment for the policy judgment of the agency.

[00:31:22] Speaker 03:
Because the trial court did not possess jurisdiction to review cooperative agreements, the court should vacate the judgment, including the permanent injunction, and remand for dismissal.

[00:31:32] Speaker 03:
Thank you.

[00:31:33] Speaker 01:
Thank you.

[00:31:33] Speaker 01:
We thank both parties, and the case is submitted.