[00:00:01] Speaker 01: May it please the court, Dominic Carollo for Defendant Scott Timber Company, Roseburg Resources Company, and RLC Industries Company. [00:00:09] Speaker 01: I'd like to try to reserve five minutes of my time for rebuttal. [00:00:13] Speaker 01: This case should be dismissed because anticipatory pre-violation notices do not satisfy the pre-suit notice requirements of the ESA. [00:00:21] Speaker 01: Plaintiff's complaint alleged a single ESA violation premised exclusively on the 49-acre Benson Snake project. [00:00:29] Speaker 01: That project was not planned nor initiated until 2016, more than two years before plaintiff's 2014 notice. [00:00:36] Speaker 04: Just to clarify, is your position that an anticipatory notice is never appropriate? [00:00:43] Speaker 01: That's our reading of Gwaltney. [00:00:45] Speaker 01: I know the plaintiffs rely on Roseboro because Roseboro recognized that they're the legally cognizable action for a future imminent violation of the ESA. [00:00:57] Speaker 01: And so we said, I think in footnote 13, I think at most there has to be notice of an imminent, a concrete and imminent violation. [00:01:05] Speaker 01: And that's missing here as well, Your Honor. [00:01:07] Speaker 00: Well, how is it possible then that we have these other cases, including Marbled Merlet and Roseboro, where we permit future, injunctions for future violations? [00:01:20] Speaker 00: So if that's permissible, why wouldn't an anticipatory notice be sufficient as well? [00:01:26] Speaker 01: Yes, Your Honor. [00:01:26] Speaker 01: So one thing I want to point out is Roseboro was not a notice case. [00:01:31] Speaker 01: And in fact, there was a four-month time period in between the time that the defendant in that case provided notice of the timber harvest and when the plaintiffs ultimately filed suit. [00:01:39] Speaker 01: Here, there was a 12-day gap. [00:01:41] Speaker 01: And that's really the issue is that 12 days after my client filed notification to harvest, they were sued. [00:01:49] Speaker 01: So it's a much different case in Roseboro where the notification to harvest was issued and the lawsuit was not initiated for four months later. [00:01:55] Speaker 01: That's in this court's opinion the timeline of the Roseboro case. [00:01:58] Speaker 00: So how does that change anything? [00:02:02] Speaker 01: Because I don't think it presented a notice problem. [00:02:05] Speaker 01: We wouldn't dispute that if plaintiffs had provided pre-suit notice, once the timber harvest plan had been noticed, once my client had initiated the project, that they could have provided valid notice for a future violation of the ESA at that time. [00:02:19] Speaker 01: But they could not in 2014, more than two years prior. [00:02:24] Speaker 01: Because at that time, there was no project, there was no [00:02:28] Speaker 01: there was no cause of action. [00:02:29] Speaker 04: Right, but there was a lot of backstory here, right? [00:02:31] Speaker 04: This wasn't a situation where somebody was just sending blanket letters indiscriminately. [00:02:36] Speaker 04: There was a huge backstory to all of this with a prior injunction and then the sale of this property. [00:02:43] Speaker 04: So doesn't that make it a little bit different? [00:02:45] Speaker 01: I don't think so because, again, there was no allegation of any past violation by my clients. [00:02:51] Speaker 01: So I think that would take this case law and Gwaltney and any of the other cases that are cited in the briefs well beyond the scope of that case law in the sense that there was no allegation of a past violation by my client, a past violation by an independent third party actor. [00:03:06] Speaker 01: I don't think any case law of this circuit or any other supports that as being a basis. [00:03:10] Speaker 04: What is the principle you're trying to vindicate here because [00:03:14] Speaker 04: You had this property, everybody knew there was an argument that there was endangered species on this property. [00:03:21] Speaker 04: When you got the notice, your client then did an investigation into that very issue. [00:03:25] Speaker 04: So from a practical standpoint, it seems like everybody knew and the notice served its purpose. [00:03:31] Speaker 04: So what is the point of this argument? [00:03:33] Speaker 04: It seems very technical to me. [00:03:36] Speaker 01: Yeah, and I think, well, I would disagree in the sense that it only focuses on one side of the congressional purpose. [00:03:42] Speaker 01: I'm glad you asked about the congressional purpose, because I think that was really the district court's error. [00:03:47] Speaker 01: It's exclusively focusing on whether or not [00:03:50] Speaker 01: my clients understood that they would be sued by plaintiffs. [00:03:53] Speaker 01: But that's not the only purpose of pre-suit notice. [00:03:55] Speaker 01: And our position, and we've briefed this, is that there has to at least be an allegation of a plausible violation that the service could plausibly enforce. [00:04:03] Speaker 01: And that was clearly absent here. [00:04:07] Speaker 04: And Gwaltney and Hallstrom both- And you say that because when you bought the property, it wasn't clear what you were going to do with it? [00:04:13] Speaker 01: In the overall sufficiency of the notice inquiry, part of what this court has said is you put yourself in the shoes of the alleged violator and what they would have understood. [00:04:24] Speaker 01: I would suggest put yourself in the shoes of the Fish and Wildlife Service in 2014 when they've gotten a letter from plaintiffs saying, you've bought this property, you're a logging company, we think that it's reasonably certain you're going to log this someday, and when you do, we're going to sue you. [00:04:38] Speaker 01: I mean, the Fish and Wildlife Service isn't going to send, I would submit, is not going to send my client notice that they're going to bring an enforcement action against them just because they're a timber company that bought a piece of property. [00:04:50] Speaker 01: There's no plausible action, there's no plausible claim alleged as a notice letter for them to pursue. [00:04:54] Speaker 01: And I think that's a lot like Hallstrom actually, because in Hallstrom there was no dispute that the alleged violator had gotten notice. [00:05:03] Speaker 01: So they got notice, but there was no notice given to the EPA and the DEQ. [00:05:09] Speaker 01: And so the district court said, well, that's very hyper-technical. [00:05:12] Speaker 01: Let's go ahead and stay the case for 60 days. [00:05:14] Speaker 01: You go ahead and provide notice to the EPA and DEQ. [00:05:17] Speaker 01: We can see if they take action within 60 days. [00:05:20] Speaker 01: And if they don't, then this case will proceed. [00:05:23] Speaker 01: And the Supreme Court said, no, that's not good enough. [00:05:26] Speaker 01: There's strict compliance required. [00:05:29] Speaker 01: And that's really the problem here. [00:05:30] Speaker 01: I mean, there was no notice of a claim that could have plausibly been pursued at that time. [00:05:35] Speaker 01: So it completely defeats that purpose. [00:05:37] Speaker 00: But your client then went out. [00:05:40] Speaker 00: You knew what the species was. [00:05:42] Speaker 00: You knew the particular section. [00:05:44] Speaker 00: You knew what the violation alleged would be. [00:05:47] Speaker 00: And then before you did any logging, you went out and hired these surveyors. [00:05:53] Speaker 00: So clearly, you knew what was on the table at that point, right? [00:05:59] Speaker 01: Right. [00:05:59] Speaker 01: So again, that's focusing on what my clients knew. [00:06:02] Speaker 01: And what I'm suggesting the court is that there's two congressional purposes. [00:06:06] Speaker 01: And yes, I mean, my client acted prudently. [00:06:08] Speaker 01: I mean, they told them that they had no present plans to log, that they were going to hire consultants to advise them, and that whatever they did do in the future would comply with the ESA. [00:06:17] Speaker 01: I mean, really, my client did nothing but act prudently here in response to somebody saying they were going to sue them. [00:06:24] Speaker 01: But again, if we go back to Hallstrom and Gwaltney, it really runs afoul of what the Supreme Court was talking about in that case. [00:06:31] Speaker 01: When Hallstrom was talking about this issue, they cited back to Gwaltney because they were emphasizing the fact, and I'm quoting, to allow government agencies to take responsibility for enforcement of environmental regulations. [00:06:44] Speaker 01: And Gwaltney really emphasized that. [00:06:46] Speaker 01: that the congressional purpose of the pre-suit notice is that citizen suits supplement, not supplant, regulatory enforcement by the federal agencies. [00:06:58] Speaker 01: And that's really what the problem here is. [00:07:02] Speaker 01: So, and again, I think that that's consistent with some of the other courts that have considered this issue, particularly then-judge and now-Justice Kavanaugh's decision in the Friends of Animal v. Ash case. [00:07:16] Speaker 01: Now, plaintiffs say that that's just for procedural deadlines for a G1C action. [00:07:25] Speaker 01: And while that's true of that case, it's not true of all the cases we cited. [00:07:29] Speaker 01: The South Yuba River case from the Eastern District of California, that was a G2A1 case for violation of Section 7 duties. [00:07:37] Speaker 01: And the court clearly said is that, yes, you have a single claim, [00:07:41] Speaker 01: It alleges a Section 7 violation, and you're challenging both the 2002 and 2007 biop. [00:07:48] Speaker 01: But your notice letter was sent prior to the 2007 biop being released. [00:07:54] Speaker 01: And therefore, the notice was inadequate. [00:07:56] Speaker 01: So that was under the same citizen suit provision we're talking about here. [00:08:00] Speaker 02: And I would suggest to you... Council, what's the remedy that you seek? [00:08:03] Speaker 02: Is it just dismissal of the suit? [00:08:06] Speaker 01: Yes. [00:08:06] Speaker 02: If we agreed with you on the notice question, said it was jurisdictional, not satisfied, then we dismiss the suit and then what happens? [00:08:14] Speaker 02: They file notice and we start all over again? [00:08:17] Speaker 01: Well, I think that presupposes that my client would go forward with the lawsuit. [00:08:21] Speaker 01: I mean, it's been permanently enjoined. [00:08:22] Speaker 01: It would have to file a new harvest notification under Oregon law to be able to proceed. [00:08:26] Speaker 01: So I don't think we're there yet, Your Honor. [00:08:29] Speaker 00: But then there would be another lawsuit. [00:08:31] Speaker 01: There could be if my client decided to proceed. [00:08:34] Speaker 01: You know, I'd point out just to show you just how sort of hypothetical and speculative the notice was. [00:08:38] Speaker 01: My client bought two properties, the Adams Ridge property. [00:08:41] Speaker 01: So we're now, this notice was sent in 2014, it's 2024 now, right? [00:08:47] Speaker 01: What if my client filed a notification for Adams Ridge today, 10 years later? [00:08:52] Speaker 01: I would submit that it would be ridiculous if we would say that we'd point back to this 2014 notice and say that that was sufficient. [00:08:58] Speaker 01: to provide notice of a claim that the Fish and Wildlife Service could enforce against my client. [00:09:05] Speaker 01: It completely supplants them as an enforcer of the regulation if we allow plaintiffs to file these anticipatory notices. [00:09:12] Speaker 01: And again, I think it's a big, this court needs to look at it not just in the context of a future violation of section nine by a private party. [00:09:19] Speaker 01: The court has to look at it too in the context of federal agencies under section seven, because those claims can be brought under there too. [00:09:26] Speaker 01: That was clear in Justice Scalia's opinion and Bennett's view. [00:09:29] Speaker 01: And it doesn't make sense that you would allow anticipatory notices of pre-violations for Section 9 in a private party, but not allow them in a Section 7 context against the government agency. [00:09:44] Speaker 00: Let me just ask another twist on the notice. [00:09:49] Speaker 00: Although we've used the word jurisdictional in some of our cases, the court, of course, has cautioned us that we're not supposed to be using jurisdiction for everything and that many things are claims processing rules and not true jurisdictional rules. [00:10:08] Speaker 00: Why isn't this a claims processing rule rather than pure jurisdiction? [00:10:14] Speaker 01: I think in the organic cannabis case, I believe, the first factor they mentioned was that the statute there used the magic words, jurisdiction. [00:10:28] Speaker 01: And this citizen suit provision does as well. [00:10:32] Speaker 01: In 1540 G, it says the district court shall have jurisdiction. [00:10:38] Speaker 01: in talking about the types of suits that may be brought. [00:10:42] Speaker 01: So I mean, it meets that first factor under the organics. [00:10:45] Speaker 00: Well, but that's kind of a different kind of jurisdiction in the sense of under the statute, of course, the federal statute. [00:10:53] Speaker 00: So I don't see that as answering the question exactly. [00:10:57] Speaker 01: Well, I think textually, 1540G is all about conferring jurisdiction on circuit courts and what needs to be happened to [00:11:08] Speaker 01: to commence the suit and have jurisdiction in the district court. [00:11:12] Speaker 01: I mean, Your Honor, respectfully too, I do think [00:11:17] Speaker 01: We think it is jurisdictional, but I think in this case it's sort of academic, because we didn't waive the issue. [00:11:22] Speaker 01: Even if it is a claims processing rule, we timely raised the issue once we got back from this court reversing the district court on the preliminary injunction. [00:11:31] Speaker 01: The plaintiff filed an amended complaint, and we responded immediately with a motion to dismiss fully briefing this issue. [00:11:37] Speaker 00: But I don't think that, of course, suggests that I don't think it would be academic if we treated it as claims processing, because [00:11:46] Speaker 00: you appealed on the injunction and in the court below during that proceeding, you raised this, the jurisdiction issue had been raised, but it wasn't appealed at all. [00:12:01] Speaker 00: So if it's a claims processing rule and it wasn't appealed, it would seem to me it would have been subsumed in the Ninth Circus First Appeal and therefore waived. [00:12:12] Speaker 01: Well, I guess two points on that. [00:12:14] Speaker 01: One, I don't think it would have been, because I think it's black-letter law in the Ranchers-Cattleman case that it's not waived by not appealing it in a preliminary injunction. [00:12:22] Speaker 01: So that's our reading of the case law. [00:12:24] Speaker 01: We briefed that. [00:12:25] Speaker 01: Secondly, it would be kind of unfair to my client, because this court has ruled that it's jurisdictional in numerous, numerous cases. [00:12:32] Speaker 01: So that would present quite a pitfall for my clients if this court were to hold that. [00:12:36] Speaker 01: I would also point out that, I mean, Hallstrom didn't particularly decide whether it was jurisdictional or not. [00:12:42] Speaker 01: It sort of left that question open. [00:12:43] Speaker 01: But there was no question what the remedy needed to be in that case. [00:12:46] Speaker 01: And that was after a full trial on the merits as well. [00:12:51] Speaker 01: So, and again, I would really focus the court's attention on Hallstrom, because I grant you, it's not the exact same situation, but it's very similar. [00:12:59] Speaker 01: I mean, the same type of arguments that are being raised here were raised there, that it would have been a waste of judicial resources, that strict compliance shouldn't be required, that it really doesn't matter whether the EPA and DEQ got noticed because they probably won't enforce the law. [00:13:14] Speaker 01: The Supreme Court was really clear that all those things do matter. [00:13:17] Speaker 01: And again, the Supreme Court pointed back to Gwaltney, and I think Gwaltney also addressed an issue that sort of underlies the plaintiff's argument and the district court's focus. [00:13:27] Speaker 01: In that case, the plaintiffs sort of pointed to this idea that, well, notice is just [00:13:32] Speaker 01: so that you could prize somebody that they're about to be sued. [00:13:35] Speaker 01: Congress thought that was something you should do. [00:13:37] Speaker 01: And the Supreme Court said, no, that's not the only reason. [00:13:39] Speaker 01: There's two reasons. [00:13:40] Speaker 01: It's the opportunity to abate and so that the government can exercise its primary jurisdiction to enforce. [00:13:47] Speaker 01: And again, emphasizing that citizen suits are meant to supplement and not supplant. [00:13:52] Speaker 01: So again, for all those reasons, we think that this court under Waltney and Hallstrom has to dismiss this case. [00:13:58] Speaker 01: I see I don't have a lot of time with respect to what I wanted to get to or reserve time for rebuttal. [00:14:03] Speaker 01: I would just say that if the court does reach the merits, [00:14:08] Speaker 01: We think the district court committed legal error in failing to require plaintiffs to prove that the 49-acre unit in question is essential, such that without the habitat, injury to specific identifiable members of the species was both reasonably certain and imminent. [00:14:24] Speaker 01: So because here the district court did not require proof of actual injury and did not require proof of the necessary links in the chain of causation, this court should vacate and remand on that basis, if it doesn't dismiss on the basis of notice. [00:14:39] Speaker 01: So if you would, I'd like to reserve the rest of my time. [00:14:41] Speaker 04: Okay. [00:14:42] Speaker 04: Thank you. [00:15:01] Speaker 03: Good morning. [00:15:02] Speaker 03: May it please the court. [00:15:03] Speaker 03: My name is Daniel Cruz and I represent the plaintiffs in this case. [00:15:07] Speaker 03: The defendants have taken the position that when they purchased the Benson Ridge property, they did not have any plans to log it. [00:15:14] Speaker 03: That is inconsistent, both with the defendant's sworn testimony and with the district court's findings. [00:15:19] Speaker 03: The defendant's representative testified at trial that Benson Ridge is specifically designated for timber production and that they did not purchase the property, quote, for any reason other than to grow and log timber. [00:15:33] Speaker 03: The district court made findings consistent with this testimony. [00:15:36] Speaker 03: And for reference, that sworn testimony is available at the supplemental excerpt of records, pages 9 and 10. [00:15:43] Speaker 03: The district court's findings are at pages 129 and 137, in which the district court specifically stated, quote, the defendants as logging companies purchased the Benson Ridge for timber harvest. [00:15:55] Speaker 03: The court continued that the defendant's participation in the auction meant it planned to cut down trees in the Benson Ridge parcel. [00:16:04] Speaker 02: A plan to cut down trees wouldn't be a violation. [00:16:06] Speaker 02: That's the statutory term. [00:16:09] Speaker 02: It's 60 days. [00:16:10] Speaker 02: It's prior to 60 days after written notice of the violation. [00:16:15] Speaker 03: So what was the violation? [00:16:16] Speaker 03: That's correct. [00:16:17] Speaker 03: The violation is the threat of future harm at that point. [00:16:20] Speaker 03: And the case law, and I'm going to discuss the Roseboro decision and the Marble Muralight decision in some more detail. [00:16:26] Speaker 03: But what those courts have explained is that the threat of harm is itself harm. [00:16:31] Speaker 03: and that the threat of harm is actionable under the Injured Species Act, and that an injunction may be issued to prevent the threat of future harm. [00:16:38] Speaker 02: And so because you notice... This can be triggered just by people thinking about logging? [00:16:44] Speaker 03: It's not, I don't think it's just merely by thinking about logging. [00:16:48] Speaker 03: It's the fact, as the district court found in this case, that this is timberland, designated specifically at timberland, that the defendants are timber companies, and they purchased this according to their own sworn testimony for one reason and one reason only, which is to log it. [00:17:01] Speaker 03: And if an injunction, as Roseboro and Marlboro-Murlet decisions discussed, if an injunction may issue based on a threat of future injury, then it necessarily follows that notice [00:17:12] Speaker 03: can be given based on the same types of future harm. [00:17:15] Speaker 03: Notice is, by definition, provided before a complaint is filed, and a complaint, by definition, comes before an injunction may issue. [00:17:22] Speaker 03: So given the practicalities and realities of federal litigation, the standard that an injunction may issue based on the threat of future harm necessarily allows notice to be given based on the same, if not even a more tangential threat at that stage, because it, by definition, happens much earlier. [00:17:41] Speaker 00: Why, you know, in 2016 when Scott says they're going to log this Benson Snake unit, why didn't you give another notice at that point? [00:17:53] Speaker 00: Because that's pretty concrete. [00:17:55] Speaker 03: Understood. [00:17:56] Speaker 03: At that point, once they provided notice to the state of Oregon, they had only to wait 15 days before they could start logging. [00:18:03] Speaker 03: This is a 49-acre timber sale unit. [00:18:05] Speaker 03: It would take a matter of days to cut every tree down in the parcel. [00:18:09] Speaker 03: And so if we filed notice at that point, [00:18:12] Speaker 03: And then waited 60 days and then filed the claim the case would be moot before it was ever right and that's expressly acknowledged in this court's decision in the Roseboro decision it says that the defendant's approach of requiring a past injury or an ongoing injury is Antithetical to the fundamental purposes of the Endangered Species Act to prevent species decline before the harm occurs so I think your friend on the other side's concern is [00:18:35] Speaker 04: A timber company purchases timberland, and we all know why it's purchasing it, but does that mean your clients could just send out blanket notices all over the place and sort of secure the right to later sue many, many years into the future? [00:18:49] Speaker 04: What are the limits on this? [00:18:51] Speaker 03: Yeah, obviously, I think every case needs to be viewed on a case-by-case basis. [00:18:55] Speaker 03: And the case law, including the Klamath-Siskey Wildlands case, describes an obligation to look at the overall sufficiency of the notice. [00:19:00] Speaker 03: That is necessarily a fact-based inquiry. [00:19:03] Speaker 03: And so there's certainly no hard-line rule that says notice is stale after X period of time, right? [00:19:12] Speaker 03: The Endangered Species Act itself said notice must be provided at least 60 days before Pseudospiles. [00:19:16] Speaker 03: It does not say that it must be provided at most. [00:19:20] Speaker 03: five years, 10 years, or anything like that. [00:19:22] Speaker 03: So there's no back end to the language of the Endangered Species Act itself. [00:19:26] Speaker 03: The 60 days is a minimum, not a maximum. [00:19:29] Speaker 00: Could it be five years? [00:19:30] Speaker 00: Could it be 10 years? [00:19:32] Speaker 03: Yeah. [00:19:32] Speaker 03: I think, again, it's a case-by-case inquiry. [00:19:34] Speaker 03: And I think it depends on the substance of the notice, the context of the notice, the history, the information that the parties had at the time, as well as the actions that the recipient of the notice took. [00:19:46] Speaker 03: And so the case law, including the Kalamaziski Wildlands case, describe [00:19:50] Speaker 03: a few different things for the courts to consider in viewing the overall sufficiency of the notice. [00:19:55] Speaker 03: One is the letter itself. [00:19:57] Speaker 03: What does it say? [00:19:58] Speaker 03: What level of detail does it provide? [00:20:00] Speaker 03: The other is the information that the defendants have. [00:20:03] Speaker 03: And that can include the history and context and the defendant's own knowledge of what their plans are, their own actions, their own property. [00:20:12] Speaker 03: And the third factor the court can consider is how did the defendants respond to receiving the notice. [00:20:17] Speaker 03: And the district court in this case did specifically look to that issue. [00:20:23] Speaker 03: It found that, excuse me. [00:20:30] Speaker 03: that after receiving plaintiff's notices, the defendants retained a group of experts and surveyors. [00:20:36] Speaker 03: And according to the sworn testimony submitted by the defendants, they took these actions to, quote, investigate plaintiff's allegations and to help inform the company's strategy and preparation for anticipated litigation. [00:20:48] Speaker 00: What is your response to Mr. Carollo's argument that all that's well and good, but that's only half the equation? [00:20:55] Speaker 00: Yeah. [00:20:55] Speaker 00: And you have to look at the agency. [00:20:57] Speaker 03: Yeah, so under the Endangered Species Act, the citizen supervision and the notice requirement, there is an obligation to forward a copy of the notice, not only to the alleged violator, but to the Fish and Wildlife Service in this case. [00:21:10] Speaker 03: We did so here, and the court made findings that that was submitted to them. [00:21:13] Speaker 03: But the district court also noted that in receiving that notice, the Fish and Wildlife Service is not required to take any particular action. [00:21:20] Speaker 03: They're just not required to. [00:21:21] Speaker 03: That's discretionary on their part at this point. [00:21:23] Speaker 03: So the lack of action by Fish and Wildlife Service is not evidence of what they believe the notice to say or whether it was sufficient. [00:21:31] Speaker 03: In fact, under the Endangered Species Act citizen supervision, if the Fish and Wildlife Service takes remedial action themselves, then citizen suits are then precluded. [00:21:41] Speaker 02: So if action had been taken by the Fish and Wildlife Service, the citizen's supervision... So the 60-day notice serves to give fish and wildlife notice and gives them an opportunity to come in and act on behalf of the government. [00:21:54] Speaker 02: Back to your point about the... As I understand it, you told me that if they... Defendants gave notice of their intent to... [00:22:03] Speaker 02: that they were intended to log this. [00:22:05] Speaker 02: That's correct. [00:22:06] Speaker 02: They could have logged it within 15 days. [00:22:08] Speaker 02: Yes. [00:22:08] Speaker 02: That's the Oregon permitting. [00:22:09] Speaker 03: That's the Oregon standard. [00:22:10] Speaker 03: That standard doesn't necessarily apply anywhere else, right? [00:22:13] Speaker 03: And so relying on the standard, I think, is misplaced. [00:22:15] Speaker 02: But at that point, your clients surely could have come in and sought for a preliminary injunction, a hold for the additional, for the marginal 45 days to allow Fish and Wildlife to act and to allow you to file a suit. [00:22:27] Speaker 03: That's incorrect, respectfully. [00:22:29] Speaker 03: Unfortunately, the case law in this circuit [00:22:31] Speaker 03: that the 60-day notice requirement is a conditioned precedent to filing suit. [00:22:35] Speaker 03: And other cases where plaintiffs have attempted to file notice before the 60 days is up and then seek a preliminary injunction have been dismissed because the plaintiffs in those cases did not wait the requisite 60 days. [00:22:45] Speaker 02: So there was no additional... Yes, but if you're going to have irreparable harm, this seems like a fairly easy case. [00:22:51] Speaker 03: I would agree with you. [00:22:51] Speaker 03: Unfortunately, it does not appear that that remedy was available to us. [00:22:57] Speaker 03: The court's decision in Roseboro. [00:23:00] Speaker 00: Let me just understand. [00:23:00] Speaker 00: You're saying that given the Oregon peculiarity of the 15 days, that you couldn't go in for an anticipatory preliminary injunction the minute you heard or found out that they were going to log on that Benson track? [00:23:19] Speaker 03: Under the terms of the Endangered Species Act, we could not do that until 60 days had passed since we filed a pre-suit notice. [00:23:26] Speaker 00: Because you need to file a suit, in other words, to have your preliminary injunction. [00:23:31] Speaker 03: That's correct. [00:23:32] Speaker 03: That's correct. [00:23:34] Speaker 03: Your Honor, in Roseboro, this court was asked to interpret Gortney in the same way that the defendants now ask the court to interpret Gortney. [00:23:44] Speaker 03: There, the defendants argued that in order to bring a claim for future harm to a species, plaintiffs would need to establish that there was some past or ongoing injury as well. [00:23:54] Speaker 03: And this court rejected that. [00:23:56] Speaker 03: It stated, relying on Gwaltney, Roseboro nevertheless insists that to state a claim under the Endangered Species Act, plaintiffs must allege either a past or current injury. [00:24:05] Speaker 03: Roseboro misreads Gwaltney. [00:24:08] Speaker 03: The court then very conclusively stated that Section 1540G, which is the citizen supervision of the Endangered Species Act, [00:24:15] Speaker 03: does not contain any requirement that claims of a future injury to wildlife be based on a past injury. [00:24:22] Speaker 03: It continued, nowhere does Congress indicate that a plaintiff's standing to enjoin such grave threats is contingent upon showing of a past injury. [00:24:31] Speaker 04: Right, so that tells us that some anticipatory notices are permissible. [00:24:37] Speaker 04: It doesn't necessarily answer the question of what the criteria are for deciding which ones are permissible and which ones are sort of too generic or too indefinite. [00:24:47] Speaker 03: That's correct. [00:24:48] Speaker 03: And I think that the question about the sufficiency of the notice are described in other cases, the Klamathiski Wildlands case in particular. [00:24:56] Speaker 03: In that case, the court explained that notice is not required to list every specific aspect or detail of every violation. [00:25:03] Speaker 03: That sufficiency turns on whether the notice provided information that allowed the defendant to identify and address the alleged violations, considering the defendant's superior access to information about its own activities. [00:25:14] Speaker 04: So here there's a whole history of the land being subject to a prior injunction and then the land being sold by the state. [00:25:21] Speaker 04: If we didn't have that here, would this be a different case? [00:25:26] Speaker 03: I think there would certainly be less context for the court to consider, and that could be determinative of the overall sufficiency of the notice. [00:25:35] Speaker 03: But certainly in this particular case, that context played a major role in the district court's decision. [00:25:40] Speaker 03: I mean, the district court found that the defendants [00:25:43] Speaker 03: that any reasonable entity in the defendant's position would have understood the nature of the allegations outlined in the notice. [00:25:50] Speaker 03: And the district court also found that the defendants in fact understood the nature of the allegations as evidenced by the actions that they took to retain surveyors, to retain experts, and to prepare for litigation. [00:26:00] Speaker 03: By their own sore testimony, the actions that they took were in preparation for litigation. [00:26:05] Speaker 03: So I understand that there may be [00:26:07] Speaker 03: a case where notice is too anticipatory, if it's so vague and so ill-defined and so far in the future. [00:26:14] Speaker 03: But that's not the circumstances here. [00:26:16] Speaker 03: The defendants purchased this property for one reason and for one reason only. [00:26:20] Speaker 03: When they purchased the property, they immediately hired experts and surveyors to do this work. [00:26:24] Speaker 03: That was part of a timber sale planning process. [00:26:26] Speaker 03: They said that they did this in order to prepare for anticipated litigation and to consider their options for logging timber. [00:26:33] Speaker 03: And then as soon as those surveys were done, [00:26:36] Speaker 03: They proposed, they drew a timber sale boundary on a map and proposed to move forward and submitted that notice of operation. [00:26:42] Speaker 03: So this was really one single ongoing planning process. [00:26:45] Speaker 02: On the other hand, they easily could have hired the surveyors long before they filed any plan to log. [00:26:51] Speaker 02: And without you giving them notice, they could have known what was coming once they proposed it. [00:26:57] Speaker 02: But it would be very responsible of them to hire surveyors to say, you know, have we got a reasonable chance at being able to log this? [00:27:06] Speaker 02: And if the surveyors come back and tell us that we've got, you know, below canopy marbled marmalettes flying around, then we ought to move on to another piece of property. [00:27:17] Speaker 03: Well, that's exactly what happened in this case. [00:27:19] Speaker 03: The defendants did hire surveyors. [00:27:21] Speaker 03: They conducted surveys in and around the Benson Ridge property. [00:27:25] Speaker 03: And they found that marbled murrelettes were occupying that particular area. [00:27:29] Speaker 03: They detected sub-canopy detections of marbled murrelettes. [00:27:32] Speaker 03: And they're now planning to log it anyway. [00:27:35] Speaker 03: And this was part of the district. [00:27:36] Speaker 02: But once they file the plan, then you know that there's going to be a violation. [00:27:41] Speaker 02: Because until that point, they haven't figured out whether they're going to do the right thing or not. [00:27:48] Speaker 03: Well, I understand that the specifications of their logging operation were not finalized until at some point shortly before they filed a notice with the state of Oregon. [00:28:00] Speaker 03: But their plans to log, as the district court found, existed at the time they purchased the property. [00:28:05] Speaker 03: And that's a finding that the district court made, and it's entitled to substantial deference. [00:28:08] Speaker 02: But plans are not operations. [00:28:10] Speaker 03: Plans are just plans. [00:28:11] Speaker 03: That's correct. [00:28:12] Speaker 03: I think it's important to remember how broad the take prohibition is under Section 9 of the Endangered Species Act. [00:28:18] Speaker 03: In the Sweet Home decision, the Supreme Court explained that take is defined in the broadest possible manner to include every conceivable way in which any person can take or attempt to take and threaten their endangered species. [00:28:31] Speaker 03: The Court explained that take is not limited to only deliberate actions. [00:28:36] Speaker 03: Take need not be purposeful or willful. [00:28:39] Speaker 03: Take can be perspective and indirect. [00:28:43] Speaker 03: And so in light of that, [00:28:45] Speaker 03: It can't follow that only named and planned projects are subject to the citizen supervision, right? [00:28:54] Speaker 03: The citizen supervision allows plaintiffs to seek an injunction against negligent acts and omissions under the definition of harassment within the Endangered Species Act and to seek an injunction against activities that are [00:29:08] Speaker 03: that seek an injunction against take that is not occurring willfully. [00:29:14] Speaker 03: And so there's nothing in the Endangered Species Act that specifically requires plaintiffs to show that the activity in question is planned or named or even purposeful. [00:29:25] Speaker 03: And so our position is that that if an injunction can be issued against a threat of future harm that the the notice requirement which necessarily Proceeds that burden of proof should be a lower standard. [00:29:39] Speaker 04: What's your position on the jurisdictional nature of the notice requirement? [00:29:43] Speaker 03: Yeah Your honor the plaintiffs have acknowledged that this court has described the 60-day notice requirement as jurisdictional and [00:29:50] Speaker 03: However, the Supreme Court, as was mentioned, has instructed courts to take a harder look at whether requirements such as this are truly jurisdictional or whether there are claims processing rules. [00:30:04] Speaker 03: The court in Arbaugh explained that the court wants to bring some discipline to the use of the term jurisdictional. [00:30:14] Speaker 03: The defendants are correct that even since Arbaugh, this court has continued to describe 60-day notice requirements as jurisdictional, but it's done so without undergoing an Arbaugh analysis. [00:30:27] Speaker 00: Isn't that the older case of Siskiyou? [00:30:31] Speaker 03: That's exactly right. [00:30:32] Speaker 03: And so the courts since Arbaugh have continued to say that notice is jurisdictional, but they haven't analyzed the issue under the Arbaugh analysis. [00:30:39] Speaker 03: It's just referred back to existing case law. [00:30:42] Speaker 03: To our knowledge, this court has never been asked. [00:30:45] Speaker 03: and has never undertaken an ARBAH analysis in relation to the 60-day notice requirement. [00:30:49] Speaker 03: However, other circuit courts have, and the first, third, fifth, and 11 circuits have all held since ARBAH that 60-day notice requirements in related environmental statutes are in fact claims processing rules and not jurisdictional. [00:31:04] Speaker 03: Our position is that if the court were to look at the ARBAH factors and the Endangered Species Act 60-day notice requirement, that it should find that notice is not jurisdictional. [00:31:13] Speaker 03: The defendant cites the cannabis decision, where this court did a Narbonne analysis. [00:31:17] Speaker 03: However, that was not for a 60-day notice requirement. [00:31:20] Speaker 03: That was a different statutory provision and an entirely different statutory requirement. [00:31:24] Speaker 03: And in that case, the court found that jurisdiction, the relevant issue there was whether a complaint was timely filed. [00:31:32] Speaker 03: And the timing was framed in the statute as a jurisdictional issue. [00:31:36] Speaker 03: The statute says that the court only has jurisdiction to hear timely filed cases. [00:31:40] Speaker 03: And so because it was framed specifically in jurisdictional terms, that court described it as, in fact, a jurisdictional issue. [00:31:47] Speaker 03: However, in this case, the citizen supervision, and specifically the 60-day notice requirement, does not speak in any jurisdictional terms. [00:31:54] Speaker 03: Now, the defendants point to other sections of the citizen supervision that reference the word jurisdiction. [00:32:01] Speaker 03: And I believe it's... [00:32:04] Speaker 03: 1540C and then 1540G1A. [00:32:10] Speaker 03: However, the notice requirement that we're discussing here is in 1540G2A. [00:32:16] Speaker 03: And I know that's a different, we're talking now about a different subsection, not just a different section, but that's exactly what the Supreme Court found was dispositive in the Gonzalez versus Thayer decision. [00:32:25] Speaker 03: There, the court explained that [00:32:27] Speaker 03: that the Congress's use of the term jurisdiction in other subsections meant that it could have spoken in clearer jurisdictional term for a different sub-subsection. [00:32:37] Speaker 03: So if the court has any questions about whether jurisdictional terms must be used in the same section or subsection or sub-subsection, the Gonzalez versus Thaler decision is instructive. [00:32:50] Speaker 03: Unless there are any other questions regarding notice, I'd like to briefly touch on the merits of the case at trial before my time is up. [00:32:57] Speaker 00: I wanted to ask, this does go to the merits, but because you mentioned harassment, the district court found harm. [00:33:06] Speaker 00: But I don't think the district court found harassment. [00:33:10] Speaker 00: Are they one and the same? [00:33:11] Speaker 00: And is that finding supported in the record? [00:33:15] Speaker 03: Yeah. [00:33:16] Speaker 03: The district court, they're not one and the same, but I think there could be substantial overlap. [00:33:21] Speaker 03: Both the definition of harm and definition of harassment describe a significant impairment of essential behavioral patterns, including breeding, feeding, and sheltering. [00:33:31] Speaker 03: And here the district court found that that was in fact the case. [00:33:34] Speaker 03: And I would correct, Your Honor, that the district court did make an explicit finding that the proposed logging operation would both harm and harass mullets, as those terms are defined by the Endangered Species Act. [00:33:45] Speaker 00: And in your view, it's the same factual underpinnings? [00:33:49] Speaker 03: It is. [00:33:50] Speaker 03: The evidence on the record in this case was that the defendant's logging operation would remove 49 acres of occupied murrelet nesting habitat. [00:34:00] Speaker 03: And again, just to clarify, we're not arguing that any modification of any habitat is per se proof of take. [00:34:06] Speaker 03: The district court relied on the fact that this particular area is occupied by marbled murrelettes and used for nesting purposes. [00:34:12] Speaker 03: And it was that determination, rather than any kind of general correlations that the defendants discussed, that led to the district court's decision here. [00:34:18] Speaker 00: So the fact that marbled murrelettes. [00:34:20] Speaker 00: Maybe I misspoke. [00:34:20] Speaker 00: The district court's factual findings do talk about harm. [00:34:25] Speaker 00: But then they do mention, or it does mention, harassment in the legal conclusions. [00:34:31] Speaker 03: That's correct. [00:34:33] Speaker 00: So is that the outflow of findings on harm? [00:34:38] Speaker 03: I think they're very closely related. [00:34:40] Speaker 03: The district court found that there was a significant impairment of essential behaviors, including breeding. [00:34:47] Speaker 03: That the logging operation would cause a definite and imminent threat of future harm to murrelettes by removing their habitat and by fragmenting their habitat. [00:34:57] Speaker 03: So there's actually, there's two things that the district court discussed. [00:35:00] Speaker 03: There's the removal of habitat, which relates to the 49 acres. [00:35:03] Speaker 03: And then there's the fragmentation of the remaining forest habitat as well. [00:35:06] Speaker 03: And I think the district court found some distinction in those. [00:35:09] Speaker 03: But when we let's return to their nesting habitat, and I see that my time is up, but I'll just finish answering the question from Your Honor. [00:35:16] Speaker 03: When we let's return to this habitat, they will, given their site fidelity, [00:35:23] Speaker 03: Given the fact that they return to the same places over and over and over again, even when their nesting sites are lost or degraded, the removal of that habitat will continue to affect them for years and years and years. [00:35:33] Speaker 03: They will come back and they will fail. [00:35:34] Speaker 03: They will come back and they will fail. [00:35:36] Speaker 03: And under these circumstances, the unique facts of this case and the unique characteristics of this species, that constitutes both harm and harassment under the endangered species. [00:35:44] Speaker 04: Before you sit down, can I just ask you one quick question on the notice? [00:35:48] Speaker 04: Which is, if the notice here was inadequate, let's assume, [00:35:51] Speaker 04: What would your clients do to try to compensate for that? [00:35:56] Speaker 04: Would you send repeated additional notices? [00:35:58] Speaker 04: Would you be completely out of luck? [00:36:00] Speaker 04: What's your position on that? [00:36:01] Speaker 03: I don't think that there's anything we could do. [00:36:03] Speaker 03: By the defendant's argument, they get to submit a notice to the state 15 days before they start logging. [00:36:07] Speaker 03: And we have to provide notice at that point and then wait 60 days. [00:36:10] Speaker 03: And the logging operations are going to be done before that 60 days is over. [00:36:13] Speaker 03: I think what the defendants are doing is trying to carve out an exception to the Endangered Species Act that allows them to freely violate for up to 60 days before any illegal action can be taken under the citizens supervision. [00:36:23] Speaker 02: And you would, now that would be subject to anything that Fish and Wildlife would decide to do. [00:36:28] Speaker 03: Fish and Wildlife has the discretion to take action, but they're not required. [00:36:31] Speaker 02: And do you have any remedies in Oregon courts or before Oregon agencies? [00:36:37] Speaker 02: If they file, they have 15 days and it's automatically approved, notwithstanding the damage it might do to them? [00:36:44] Speaker 03: That's right. [00:36:44] Speaker 03: In California and Washington, there's a much more robust process for planning and approving timber harvests. [00:36:49] Speaker 03: In Oregon, there's basically none. [00:36:51] Speaker 03: They don't even have to seek a permit to log, they just have to provide notice and they go in and do it. [00:36:55] Speaker 03: So there's no real back and forth between the timber companies and the regulatory agencies. [00:36:59] Speaker 03: The notice is provided, the logging begins and it's done. [00:37:02] Speaker 03: very quickly in this particular case. [00:37:04] Speaker 02: Does Oregon state law offer any protection for the species? [00:37:09] Speaker 03: Oregon state law, marbled meallets are listed as endangered under Oregon state law. [00:37:15] Speaker 03: But the take prohibition there is very different. [00:37:17] Speaker 03: And I'm sorry that I haven't fully vetted the options that my clients may have not understood. [00:37:23] Speaker 02: But you might well have then some kind of temporary relief, a TRO, in Oregon state courts under Oregon law. [00:37:30] Speaker 03: Yeah, it is theoretically possible. [00:37:31] Speaker 03: I'm not aware of it. [00:37:32] Speaker 03: However, the take prohibition is a federal standard. [00:37:36] Speaker 03: It applies in all 50 states and applies to all people. [00:37:39] Speaker 03: That includes companies, the government, and individuals. [00:37:42] Speaker 03: And so I don't think the standards for when notice can be given of unlawful take [00:37:48] Speaker 03: can be hinged on local standards or other remedies that might be available in different locations. [00:37:53] Speaker 02: Given that Oregon has a procedure different from California and Washington, how does that inform our judgment if this is a national rule? [00:38:03] Speaker 02: Why would we have to take some special notice of what the consequences might be under Oregon's procedures when Oregon seems to be unique in the Northwest? [00:38:15] Speaker 03: Well, I think it shows that the court should not take those things into consideration. [00:38:20] Speaker 03: In other words, the standard is you can't take an endangered species act. [00:38:24] Speaker 03: There are no exceptions when there's another remedy available in a different jurisdiction or a different venue. [00:38:30] Speaker 03: Take is unlawful and strictly prohibited. [00:38:33] Speaker 03: And as this court explained in the Roseboro decision, the purpose of this prohibition is to prevent harm to the species before it occurs. [00:38:39] Speaker 02: I'm still surprised that you would think that a TRO would not be permissible in federal court just to hold for 45 days until you could file the suit or to allow fish and wildlife in the meantime to make a decision. [00:38:52] Speaker 02: I don't understand that. [00:38:53] Speaker 02: Is there precedent for that? [00:38:54] Speaker 03: There is. [00:38:55] Speaker 03: I'm sorry, I don't have a citation for the court. [00:38:56] Speaker 03: I'd be happy to submit a supplemental memo just outlining that particular point. [00:39:00] Speaker 03: But I believe that our case is directly on point. [00:39:02] Speaker 03: And in light of what this court has described as a jurisdictional requirement, which I know we're asking the court to change in this decision, but it is certainly a conditioned precedent to suit. [00:39:12] Speaker 03: And that's clear in the Hallstrom decision. [00:39:14] Speaker 00: Are there cases involving preemption of these state quasi-ESA provisions in the federal law? [00:39:21] Speaker 03: I'm not aware of them. [00:39:22] Speaker 03: But I mean, the Endangered Species Act preempts other state laws. [00:39:26] Speaker 03: I mean, that's clear, right? [00:39:28] Speaker 03: And the Endangered Species Act applies in all 50 states broadly to all individuals. [00:39:32] Speaker 03: And so the sufficiency of notice I don't think hinges on whether there's some other available remedy at law. [00:39:42] Speaker 03: Okay. [00:39:42] Speaker 04: Thank you, Mr. Cruz. [00:39:43] Speaker 03: Thank you very much for giving me some additional time. [00:39:44] Speaker 03: I appreciate it. [00:39:55] Speaker 01: Thank you, Your Honors. [00:39:57] Speaker 01: So to your question, I think really what the plaintiffs are suggesting is that you do create an organ rule, not that we are trying to create an exception. [00:40:08] Speaker 01: And I will just say, I think Hallstrom answered this question, and if you permit me, I'd like to read [00:40:13] Speaker 01: passage from page 30 in Hallstrom. [00:40:17] Speaker 01: So there, I'm quoting now. [00:40:20] Speaker 01: When they say they, they're talking about the plaintiffs. [00:40:22] Speaker 01: The court says, they assert that courts would be precluded from giving essential temporary injunctive relief until 60 days had elapsed. [00:40:29] Speaker 01: Although we do not underestimate the potential damage to the environment that could ensue during the 60-day waiting period, [00:40:35] Speaker 01: This problem arises as a result of the balance struck by Congress in developing the citizen suit provision. [00:40:41] Speaker 01: Congress did that in the ESA. [00:40:42] Speaker 02: So you agree with your friend across the aisle that if you could log within 15 days that you could log and there isn't anything that anybody could do to prohibit it unless fish and wildlife got in? [00:40:55] Speaker 01: Well, I think that their argument that it's not jurisdictional might open the door for that. [00:40:59] Speaker 01: I think that that's intention, as he said. [00:41:02] Speaker 01: I mean, if it's not jurisdictional, it may not be as much of an absolute bar. [00:41:06] Speaker 01: But again, that also presupposes the Fish and Wildlife Service doesn't step in and do something, right? [00:41:14] Speaker 01: Again, Congress thought about that. [00:41:16] Speaker 02: Since you've taken the position that it's jurisdictional, let me hold you to your argument. [00:41:20] Speaker 02: So if it's jurisdictional, and your client would be allowed to log within 15 days, do you agree on that? [00:41:26] Speaker 02: I do agree with that, yes. [00:41:27] Speaker 02: You agree with that thing, log within 15 days of filing the order. [00:41:30] Speaker 02: And unless Fish and Wildlife stepped in within 15 days, there's nothing anybody could do to prevent your client from logging. [00:41:39] Speaker 01: Other than potentially state court remedies, Mike, Mr. Cruz, I'm not prepared to speak what all those might be, but there could be state court remedies. [00:41:46] Speaker 02: But you certainly would fight tooth and nail on jurisdictional grounds if they asked for a TRO just for 45 days just to get you to the point where they could file a citizen suit. [00:41:57] Speaker 01: I think most defendants would, and I think they would point to Hallstrom. [00:42:01] Speaker 01: Yeah. [00:42:02] Speaker 01: And again, though, I think Congress struck that balance. [00:42:04] Speaker 01: Because in G2C3, Congress provided an exemption when essentially there's an extinction risk to a species. [00:42:11] Speaker 01: So that if the secretary wasn't acting fast enough to list a species, Congress was balanced. [00:42:16] Speaker 00: And that's a pretty narrow exception. [00:42:18] Speaker 01: Right, it's a narrow exception, but for basically an extinction risk. [00:42:23] Speaker 01: But when it just came to the other violations ESA, the Congress chose not to provide an exception to the 60-day notice. [00:42:28] Speaker 01: That's my point, I guess. [00:42:29] Speaker 00: Well, I think that's because they're thinking nobody's going to rush in and start cutting. [00:42:34] Speaker 02: Congress may have done this balanced. [00:42:35] Speaker 02: I'm not sure they were thinking about the 15-day Oregon rule. [00:42:39] Speaker 01: Maybe, and I know I keep harping on it, but what I just read from Hallstrom, the Supreme Court was presented with that very dilemma, and they made a ruling on it. [00:42:47] Speaker 01: We would respectfully submit that this case is controlled by Hallstrom in that respect. [00:42:55] Speaker 01: I do want to comment, I mean, partly, you know, I would like to comment because they focus a lot on, they say, the testimony of Mr. Phil Adams. [00:43:02] Speaker 01: He was not a FRCP 36B deponent. [00:43:08] Speaker 01: The witness that we presented for that was most knowledgeable about defendant's plans with Dana Chose. [00:43:14] Speaker 01: And if you look at ER 1197 through 98, he testified at trial that Scott Timber Company, it's not [00:43:21] Speaker 01: that they do sometimes buy properties and hold them and then sell them for other purposes, like conservation, if there's not a timber production value there to have. [00:43:32] Speaker 01: And I would also point out that in this case, at docket number 142 of the district court's record, [00:43:42] Speaker 01: We filed a notice with the district court following trial explaining to the district court that my clients had actually sold an option to purchase this parcel and nine other completely unrelated parcels for mitigation, non-timber production purposes. [00:43:57] Speaker 00: Is that filed after the district court's order was issued? [00:44:00] Speaker 01: Yeah, it was long after. [00:44:02] Speaker 01: It was, but I'm just saying that we told it, our suggestion is this, of course, you can't just assume that a sophisticated business buys property and they can only do one thing with it. [00:44:11] Speaker 01: I mean, landowners will do what's best to do with the property from a financial standpoint. [00:44:16] Speaker 01: And if it has values that are higher and better for other uses, they will sell the property for that. [00:44:22] Speaker 01: They'll hold it as a long-term investment, sell it. [00:44:24] Speaker 01: I think this whole idea that because they're a logging company, [00:44:27] Speaker 01: We can assume that they're gonna they're gonna log and violate the Endangered Species Act proves too much Is there any other commercial use of the property besides logging be used for? [00:44:35] Speaker 01: Setting up a koa campground or yeah, actually, I mean it's not in the record But yeah, actually most so forestry land zone can be used for like some of those types of purposes suitable for that um campers hikers [00:44:50] Speaker 01: Yeah, I mean, I know like for I know from my personal experience, like you can do like a hunting outfit or camp or something for hunting. [00:44:56] Speaker 01: I mean, a lot of people hunt in the LA State Forest with those properties located. [00:45:02] Speaker 01: The other thing I'd like to point out is that [00:45:06] Speaker 01: We're talking a lot about what the notice says. [00:45:08] Speaker 01: I would really ask the court to focus on what I'm saying, is that there are two sides of the equation, and at a minimum, this notice fails the second side of the equation for enforcement. [00:45:18] Speaker 01: The other issue, though, is that if you look closely at the notice itself, there's no allegation that logging was imminent. [00:45:26] Speaker 01: And I think at a minimum, there has to be that imminency, right? [00:45:29] Speaker 01: I mean, that is the basis for legal action under Roseboro. [00:45:32] Speaker 01: And if you look closely at their notice, it says that logging is reasonably certain to occur because you are a logging company. [00:45:39] Speaker 01: But there is no allegation that it's imminent. [00:45:41] Speaker 01: And in fact, I mean, they did not take any. [00:45:43] Speaker 01: We told them in response that there was no plan that wasn't imminent. [00:45:47] Speaker 01: They filed such a lawsuit. [00:45:49] Speaker 01: There was no claim for them to provide notice of until 2016. [00:45:53] Speaker 01: And because they failed to provide notice, this court should dismiss for failure to comply with the 68-day notice provision. [00:45:59] Speaker 04: Was there a situation in which they would have been on notice of this prior to this whole 15-day period? [00:46:05] Speaker 04: Because it seems that the only reason they have to know this is actually definitely going to happen is when you make that filing that then triggers the 15 days. [00:46:14] Speaker 04: Is there any reason to think that there was some window earlier when they could have acted? [00:46:17] Speaker 01: I think it's plausible, yes, your honor. [00:46:19] Speaker 01: I mean, so one of the things we've vigorously disputed in district court is their standing. [00:46:23] Speaker 01: But they provided sworn testimony that people visited and used and enjoyed using this area immediately adjacent to it. [00:46:29] Speaker 01: Well, I mean, if, for instance, I mean, it's common for a timber company to mark the boundaries of a unit before they're going to log in and before they were going to go in and file a notification. [00:46:40] Speaker 01: If they're actually present using and enjoying the property as they say they do, they could have observed preparations to harvest that might have preceded a notice that would have perhaps been evidence for them to believe reasonably believe that harvest was imminent. [00:46:54] Speaker 04: Does the record show that that was the case here? [00:46:56] Speaker 01: No, no, no, but I guess I understood your question and asked me a hypothetical. [00:46:59] Speaker 01: I'm just saying that hypothetically, I think that they could. [00:47:01] Speaker 01: If they cared about the area as much as they say they do, and they observe equipment coming in or whatever, that could be evidence that would justify an allegation that harvest is imminent, and that would be before the 15-day notice. [00:47:14] Speaker 01: And again, plaintiffs, they establish standing according to the district court. [00:47:18] Speaker 01: They claim that they use and enjoy the area. [00:47:20] Speaker 01: So they should be there, and they should be able to see that occurring if that was happening. [00:47:24] Speaker 04: we let you over your time but let me see if there's any further questions for you. [00:47:28] Speaker 04: Mr. Corolla, thank you very much. [00:47:30] Speaker 04: Thank you both for your presentations this morning. [00:47:32] Speaker 04: This matter is submitted.