[00:00:00] Speaker 01:
Yes, Your Honor.

[00:00:01] Speaker 05:
You may proceed.

[00:00:02] Speaker 01:
Good afternoon.

[00:00:03] Speaker 01:
Good morning, Your Honor.

[00:00:05] Speaker 01:
May it please the Court.

[00:00:06] Speaker 01:
James Auslander for Appellate National Mining Association.

[00:00:10] Speaker 01:
I'll address why plaintiffs' complaints are unreviewable and why their remedy is untenable.

[00:00:15] Speaker 01:
Mr. Torstenson will then address why the National Environmental Policy Act, or NEPA, was neither triggered nor violated here.

[00:00:22] Speaker 01:
We collectively would like to reserve two minutes for rebuttal.

[00:00:25] Speaker 01:
This court should reverse because the district court has usurped the Department of the Interior's authority to administer its federal co-leasing regulations.

[00:00:34] Speaker 01:
Plaintiffs brought this litigation because Interior did not indefinitely pause all federal co-leasing while Interior conducts a consideration of what, if any, policy changes to its governing regulations might be warranted.

[00:00:47] Speaker 01:
But it's undisputed in this case, Your Honors.

[00:00:49] Speaker 01:
that the Interior has no legal obligation to conduct such a programmatic review or a PEIS or to freeze its existing program while it undertakes that review.

[00:01:00] Speaker 01:
That much is clear from federal regulations, including 43 CFR 46-160 and 40 CFR 1506.1C, and from case law, including the D.C.

[00:01:11] Speaker 01:
Circuit's recent rejection of functionally identical claims in Western Organization Resource Council or the Work case.

[00:01:19] Speaker 01:
The district court erred in creating such novel legal obligations and then enacting plaintiffs' sweeping policy to end federal coal leasing indefinitely.

[00:01:29] Speaker 01:
Rather like the DC Circuit, the district court here should never should have entertained this dispute entirely contrived by the plaintiffs.

[00:01:35] Speaker 01:
Now, perhaps a bit unorthodox, but I'd like to start with the district court's remedy before turning to why plaintiffs... I guess I'd rather hear from you first on the mootness issue.

[00:01:45] Speaker 01:
I'm sorry, Your Honor?

[00:01:45] Speaker 05:
I'd rather hear from you first on the mootness issue.

[00:01:48] Speaker 01:
Well, on mootness, Your Honor, the Zinke order and its NEPA analysis present no case or controversy and are moot because current Interior Secretary Holland vacated them long before the District Court purported to do so a second time, and plaintiffs have not challenged that Holland order.

[00:02:07] Speaker 01:
There's no evidence Interior is using or intends to use the Zinke order's NEPA analysis for any purpose.

[00:02:13] Speaker 01:
The Zinke order and its NEPA analysis simply are irrelevant and can only yield an impermissible advisory opinion.

[00:02:20] Speaker 01:
Moreover, Interior is now in the midst of a programmatic NEPA review of federal cold leasing.

[00:02:26] Speaker 01:
Courts and the plaintiffs can't dictate the interim or end policy result of that review.

[00:02:31] Speaker 01:
And speculation about how Interior might administer or amend its longstanding federal cold leasing regulations

[00:02:38] Speaker 01:
also creates no exception.

[00:02:39] Speaker 05:
The district court said on ER 15 that the Zinke order still remains in partial effect.

[00:02:45] Speaker 05:
Is that correct?

[00:02:46] Speaker 01:
No, Your Honor.

[00:02:47] Speaker 01:
The Zinke, again, this kind of falls back to what the Zinke order is.

[00:02:52] Speaker 01:
The Zinke order and the Jewel order did not stop the federal coal leasing program.

[00:02:58] Speaker 01:
They did not amend the federal coal leasing program in any way.

[00:03:01] Speaker 01:
What they were were discretionary action about how quickly

[00:03:06] Speaker 01:
the Department of the Interior would process, receive federal coal leasing applications under its existing program.

[00:03:13] Speaker 01:
And the Juul order set one priority, the Zinke order set a different priority, but at the end of the day, there was no change to the overall program.

[00:03:26] Speaker 01:
And again, it's really about speculative contingencies about what Interior might do if it chooses to amend its program or what leases Interior might issue.

[00:03:38] Speaker 01:
That's unaffected.

[00:03:41] Speaker 01:
Interior now is proceeding with a programmatic review, and it's free to do so.

[00:03:49] Speaker 01:
But I think it's telling, even just factually, that more leases were issued under the Jewel Order than were issued

[00:03:55] Speaker 01:
under the Zinke order.

[00:03:57] Speaker 01:
Again, that wasn't even a total stoppage.

[00:04:02] Speaker 01:
I think that's what I'd like to say about mootness.

[00:04:07] Speaker 01:
And again, just one final thing is that any agency actions actually having effect on the ground remain challengeable.

[00:04:13] Speaker 01:
Again, it's undisputed.

[00:04:14] Speaker 01:
District court found it's undisputed that NEPA has to be done before actual federal coal leasing begins.

[00:04:20] Speaker 01:
NEPA has to be done before the Department of the Interior proposes and changes its regulations.

[00:04:25] Speaker 01:
But there is no proposed major federal action or final agency action that happens here.

[00:04:31] Speaker 01:
And the Zinke order is gone forever.

[00:04:34] Speaker 01:
There's no indication it's ever coming back, such that that's the only posted action in this case, and it's gone.

[00:04:42] Speaker 01:
So there's really nothing more for the court to decide in this case on the Zinke order.

[00:04:48] Speaker 01:
If the court will permit me, I'd just like to talk about remedy.

[00:04:52] Speaker 01:
For two reasons.

[00:04:53] Speaker 01:
One, being completely transparent.

[00:04:57] Speaker 01:
That's really the reason we're here.

[00:04:59] Speaker 01:
The plaintiff's complaints are baseless.

[00:05:02] Speaker 01:
This appeal might have been unnecessary if the district court hadn't manufactured an indefinite prohibition on federal coal leasing.

[00:05:09] Speaker 01:
Interior can elect to undertake or not undertake a programmatic review.

[00:05:13] Speaker 01:
It's free to do that.

[00:05:14] Speaker 01:
But here the district court stopped leasing indefinitely until a proper or an acceptable neighbor review that passes muster with the district court and plaintiffs is prepared.

[00:05:24] Speaker 01:
And the order remedy really crystallizes the central fiction underlying the plaintiff's entire complaints and the district court's merits and jurisdictional rulings.

[00:05:35] Speaker 01:
They misportray two orders, and you have to look at both orders together by Interior Secretaries Jule and Zinke as simply ending and restarting all federal coal leasing.

[00:05:46] Speaker 01:
And based on that false premise, the district court purported to vacate the Zinke order

[00:05:51] Speaker 01:
and reinstate the jewel order.

[00:05:53] Speaker 01:
But the district court said one thing while doing something completely different.

[00:05:57] Speaker 01:
In reality, the district court effectively rewrote the jewel order to convert its PEIS and PAUSE from voluntary to mandatory just because they had begun.

[00:06:06] Speaker 01:
Moreover, the district court divorced the Jewel Order's temporary pause on processing certain federal co-leasing applications from the Jewel Order's sole condition precedent for such a pause.

[00:06:17] Speaker 01:
What no one disputes was a voluntary and exploratory PEIS.

[00:06:22] Speaker 01:
The PEIS and pause were inseparable under the Jewel Order, and the Jewel Order found that the PEIS warranted a pause, not the other way around that the pause warranted a PEIS.

[00:06:32] Speaker 01:
But the district court somehow derived a mandatory injunction on federal coal leasing and did so even without assessing the Supreme Court's required Monsanto factors for injunctive relief.

[00:06:42] Speaker 01:
And what's more, that leasing prohibition remains until such time that Interior produces a NEPA document acceptable to the district court and the plaintiffs, which, as Mr. Torsensen is going to discuss, it's the same scope as the Jewel Order PEIS that Interior began and then ended.

[00:06:58] Speaker 01:
This court cannot affirm the district court's remedy without making a first-of-its-kind ruling that a voluntary NEPA review once begun becomes mandatory to complete.

[00:07:07] Speaker 01:
The district court ordered the equivalent of the dual order P.E.I.S., despite recognizing that it couldn't do so.

[00:07:13] Speaker 01:
Nor did the district court say what specifically was missing from the interior NEPA review for the Zinke order.

[00:07:19] Speaker 01:
Despite recognizing at the first summary judgment hearing its obligation to do so, the district court there said, well, what if I were to rule in your favor?

[00:07:27] Speaker 01:
I think at a minimum, wouldn't I be required to tell the defendants what they did wrong, what they should do?

[00:07:32] Speaker 01:
Not just say, well, this isn't good enough.

[00:07:33] Speaker 01:
Why don't you give it another crack, end quote.

[00:07:36] Speaker 01:
Yet the district court ordered just that in the end.

[00:07:39] Speaker 01:
And again, beyond muteness, there's also no final agency action to give subject matter jurisdiction here.

[00:07:46] Speaker 01:
because it doesn't pass the Bennett v. Spear standard.

[00:07:49] Speaker 01:
Even if a secretarial order ever could constitute final agency action, which no court has ever found, the specific orders here don't do that.

[00:07:58] Speaker 01:
On the first Bennett factor, rather than consummating anything, the PEIS and PAUS were a first step to explore possible policy reforms.

[00:08:06] Speaker 01:
That's all they were.

[00:08:08] Speaker 01:
Nor did the Zinke Order create or alter the rights of any party or lease a single acre or ounce of federal coal.

[00:08:15] Speaker 01:
Rather, the Interior Secretarial Orders here cover merely internal management of agencies and speak only to Interior staff, not to any regulated entity.

[00:08:24] Speaker 01:
They expressly, by their terms, create no legal rights or obligations for anyone.

[00:08:29] Speaker 05:
That is, Interior had in fact... We'll probably want to spend some time for rebuttal and we'll let you have that, but didn't the Jewel Order put in place a temporary moratorium?

[00:08:38] Speaker 01:
Uh, no, your honor.

[00:08:39] Speaker 01:
What the, what the, what the jewel order did was order a programmatic environmental impact statement and put a pause in place for the sole purpose of completing that environmental impact statement.

[00:08:51] Speaker 01:
Okay.

[00:08:51] Speaker 05:
Is that not a temporary moratorium?

[00:08:53] Speaker 01:
No, Your Honor.

[00:08:54] Speaker 01:
What it is, it's an order.

[00:08:56] Speaker 01:
It is tied to prepare an environmental impact statement.

[00:09:00] Speaker 01:
For the purpose of that impact statement, it stated that the interior should withhold a decision on certain types of leasing applications until the results of that order came in.

[00:09:17] Speaker 01:
It's really no different than

[00:09:18] Speaker 01:
Say a press release or an internal email from an agency official to his or her subordinates It's just inherently exercising discretion about where the agency's going to prioritize its resources It could have continued the coal leasing program while it was preparing the PEIS, right?

[00:09:38] Speaker 03:
Correct your honor and and that zinc you what it wasn't even necessary to end the jewelry the temporary the temporary moratorium would not have expired upon the issuance of the PEIS and

[00:09:48] Speaker 01:
Yes, it would have, Your Honor.

[00:09:49] Speaker 03:
Automatically?

[00:09:50] Speaker 03:
Well, what the Jewel Order said... The PEIS said, we've got to stop whole leasing.

[00:09:54] Speaker 03:
The moratorium would have stopped, and then they would resume leasing, even though the PEIS said don't.

[00:10:00] Speaker 01:
Well, again, I think you have to look at what the... The U.S.

[00:10:02] Speaker 03:
can't be independent of each other, Counsel.

[00:10:05] Speaker 01:
The Jewel Order linked specifically the pause to completion, said until completion of the PEIS, the district... But the moratorium wouldn't have expired automatically upon the issuing of the PEIS.

[00:10:17] Speaker 01:
I think Interior would have had to say, based on the results of the PEIS, if it would have found that certain reforms were needed and it needed to do, it would have had to issue a subsequent order or direction to it.

[00:10:30] Speaker 01:
Because again, you have to look at what the order actually said.

[00:10:32] Speaker 01:
It didn't say, don't issue any coal leases until X date or whatever.

[00:10:39] Speaker 01:
Again, because a perfectly result of the PEIS would have been,

[00:10:43] Speaker 01:
don't change anything, just keep it going the way it was, just like it was in 1985, very few changes from that supplemental program at EIS.

[00:10:52] Speaker 01:
Actually, the program largely continued as it was before 1979, just with very minor changes.

[00:10:59] Speaker 01:
So again, it's just pure speculation about what it would have happened after the PEIS was issued, if Interior would have said, no more leasing.

[00:11:09] Speaker 01:
It really needs to ride together.

[00:11:12] Speaker 01:
This was not a stoppage or a change in the underlying regulatory scheme.

[00:11:17] Speaker 01:
I do see my time is up, so.

[00:11:19] Speaker 02:
Council, if Judge Russ doesn't mind, I have one question for you.

[00:11:26] Speaker 02:
Of course, please.

[00:11:27] Speaker 02:
If we were to vacate the district court order and remand with instructions for the district court to dismiss as moot, what's the harm to your client, if any?

[00:11:49] Speaker 01:
If this court reverses the district, if I understand the question correctly, Your Honor, if this court reverses the district court and dismisses the cases, what is the harm to my client?

[00:12:00] Speaker 02:
I think what I said was if we vacate the district court order.

[00:12:05] Speaker 01:
Right.

[00:12:05] Speaker 01:
Well, in that event, there would be no harm to the client, because again, the

[00:12:10] Speaker 01:
there would be no injunction anymore on federal coal leasing.

[00:12:14] Speaker 01:
Whatever decisions Interior might make about its regulations or about any particular application would become ripe when those decisions are made.

[00:12:23] Speaker 02:
Okay, thank you.

[00:12:24] Speaker 01:
Thank you.

[00:12:24] Speaker 01:
I'll defer to Mr. Torson to explain why plaintiffs can't prevail even if this course proceeds to the merits of the NEPA claims.

[00:12:30] Speaker 01:
Thank you.

[00:12:30] Speaker 05:
Okay, thank you.

[00:12:48] Speaker 06:
Good morning, Your Honors.

[00:12:50] Speaker 06:
May it please the Court, Peter Torstenson on behalf of the states of Montana and Wyoming.

[00:12:55] Speaker 06:
Plainness case hinges on the fiction that the Jewel Order set the status quo for all federal coal leasing and the Zinke Order changed it.

[00:13:04] Speaker 06:
But that House of Cards topples on closer inspection.

[00:13:07] Speaker 06:
This Court should reverse for two reasons.

[00:13:10] Speaker 06:
First, the Zinke Order cannot be a major federal action because it didn't change the regulatory status quo.

[00:13:17] Speaker 06:
For more than 40 years, all federal coal leases have been evaluated under the Federal Coal Program, even during the Jewel Order's leasing pause.

[00:13:27] Speaker 06:
Neither the Jewel Order nor the Zinke Order altered or amended the Federal Coal Program, so that program remains the regulatory status quo.

[00:13:36] Speaker 06:
Second, even if NEPA applies, Interior's EA was sufficient.

[00:13:41] Speaker 06:
But plaintiff's real beef isn't with Interior's EA.

[00:13:45] Speaker 06:
It's with the Federal Coal Leasing Program.

[00:13:47] Speaker 06:
Even though they framed their complaints in terms of NEPA compliance, they really want Interior to create a new Federal Coal Program from scratch.

[00:13:56] Speaker 06:
And despite saying that the PEIS was not an available remedy in this litigation, the district court ordered precisely that.

[00:14:03] Speaker 06:
That was error, and this court should reverse.

[00:14:06] Speaker 06:
I'll begin with why the Zinke order was not a major federal action.

[00:14:10] Speaker 06:
We believe that the DC Circuit's recent decision in the Western Organization's Resource Council case or work is directly on point.

[00:14:22] Speaker 06:
There the court held that Interior has no duty to update its existing federal program unless it proposes formal changes to its federal coal program.

[00:14:34] Speaker 06:
because the major federal action on the federal coal program was complete with the issuance of the 1979 PEIS.

[00:14:42] Speaker 06:
Yet the district court held that the Zinke Order's lifting of the leasing pause was the major federal action that was missing in work, even though the D.C.

[00:14:51] Speaker 06:
Circuit was clearly aware of both orders when it reached its conclusion.

[00:14:57] Speaker 06:
It found that the plaintiffs had, quote, failed to identify any specific pending action apart from the program's continued existence that qualifies as a major federal action, end quote.

[00:15:09] Speaker 06:
Indeed, the court stayed the case during the dual order, and it reset the briefing schedule after the Zinke order was issued.

[00:15:19] Speaker 06:
So if the Zinke order really was the missing major federal action, it seems passing strange that the D.C.

[00:15:26] Speaker 06:
Circuit failed to mention that in its opinion.

[00:15:28] Speaker 06:
We think the more natural inference is that neither order was a, or the D.C.

[00:15:34] Speaker 06:
Circuit believed that neither order was a major federal action.

[00:15:37] Speaker 06:
And that's supported by its recent decision in the Environmental Health Trust case, which is at 9 F4 893.

[00:15:45] Speaker 06:
With the issuance of the Jewell order being major,

[00:15:48] Speaker 06:
federal action?

[00:15:50] Speaker 06:
We do not believe that it would have been a major federal action.

[00:15:53] Speaker 06:
It was issued pursuant to a secretarial order.

[00:15:58] Speaker 06:
Generally speaking, these secretarial orders are intended to guide the internal agency management.

[00:16:04] Speaker 06:
The secretarial orders all indicate that they provide no legal rights or remedies.

[00:16:12] Speaker 06:
They're not intended to create any legal rights.

[00:16:14] Speaker 05:
But at least part of the order's effect was to put a pause on leasing with some exceptions, right?

[00:16:20] Speaker 06:
Sure.

[00:16:20] Speaker 06:
It puts a pause on leasing with some exceptions.

[00:16:23] Speaker 06:
As Mr. Oslander indicated before, there were leases that were issued during the dual order.

[00:16:29] Speaker 06:
It's the composition of leases that are actually different.

[00:16:34] Speaker 06:
Once the dual order was implemented, there were certain leases that would be processed, and the text of the dual order indicates that all non-exempt leases, they would be deferred until they complete the voluntary programmatic review.

[00:16:50] Speaker 05:
At that time, couldn't a person who was aggrieved by that have a claim as to the dual order, whether it's your clients or Mr. Auslanders?

[00:16:58] Speaker 06:
We're unaware of any case in which a party has challenged a secretarial order.

[00:17:05] Speaker 06:
Plaintiffs point to none, the district court pointed to none, and we see nothing in the text of the dual order that creates any specific legal rights.

[00:17:12] Speaker 06:
It might be a different case if they deemed the applications denied at the time, then maybe there's an argument that those were in effect reaching conclusions on the legal rights of the parties

[00:17:25] Speaker 06:
Could you have brought a challenge to the dual order?

[00:17:30] Speaker 06:
Could we?

[00:17:31] Speaker 06:
Yes.

[00:17:33] Speaker 06:
I don't believe we could have brought a challenge to the dual order, no.

[00:17:39] Speaker 03:
Including the temporary pause, including the moratorium on gold leasing.

[00:17:43] Speaker 06:
I mean, there might be a basis for asserting that there's some ultra virus action in terms of acting with

[00:17:54] Speaker 06:
like that the secretary was acting kind of beyond their statutory authority under the Mineral Leasing Act.

[00:18:02] Speaker 06:
But aside from that, no, I'm not unaware of any legal challenge that they could have brought to that.

[00:18:06] Speaker 02:
Councils, Judge Gould, if I could ask you a question.

[00:18:12] Speaker 02:
I may be missing something, but I'd like to know from your perspective, if our panel were to vacate the district court order and to remand the case to the district court with instructions to dismiss, how is your client harmed by that and what's your position

[00:18:37] Speaker 06:
Yes, as mr. Oslander indicated if The panel were to vacate and remand with instructions dismissed.

[00:18:45] Speaker 06:
We don't believe that we would be harmed by that We believe that yeah, we don't believe that there would be any harm in that indication or in that ruling Thank you

[00:19:00] Speaker 06:
So returning to the Environmental Health Trust case, so similar, as I said, we believe that the more natural inference there is that neither order was of major federal action, and the Environmental Health Trust case supports that.

[00:19:17] Speaker 06:
The FCC had issued guidelines on RF radiation limits in 1996.

[00:19:24] Speaker 06:
Those were supported by NEPA analysis.

[00:19:27] Speaker 06:
And then in 2013, they undertook a voluntary review and then abandoned it six years later.

[00:19:33] Speaker 06:
Relying in part on the Wart case, the court held that

[00:19:40] Speaker 06:
that there was no duty to update their 1996 guidelines without a major federal action pending.

[00:19:48] Speaker 06:
And they said that the start and stop of the notice of inquiry into the 1996 guidelines did not change that analysis.

[00:19:57] Speaker 06:
And they further proposed that a major federal action could be pending if there were amendments that were offered to the existing regulatory program.

[00:20:06] Speaker 06:
similar to the case here, and we think that if the court were to endorse the district court's ruling, that it would have to depart from the rationale of both the Warrick case and the Environmental Health Trust case.

[00:20:24] Speaker 06:
And we also think that there are a few more reasons that the Zinke order does not constitute a major federal action.

[00:20:32] Speaker 06:
First, an agency's discretionary decision can't change the status quo unless it alters the existing legal framework.

[00:20:40] Speaker 06:
And the dual order, as we've discussed, does not create any legal rights.

[00:20:43] Speaker 06:
And so the Zinke order's rescission of it doesn't change the status quo by rescinding it.

[00:20:51] Speaker 06:
No party, again, pointed to a case in which NEPA or a case that had sustained a NEPA challenge to a secretarial order.

[00:21:01] Speaker 06:
And the cases that planners rely on all involve instances in which there had been NEPA analysis performed on an existing rule or regulation and then a later decision attempted to undo that.

[00:21:14] Speaker 03:
What if the secretary said, we're just not going to, we're going to stop issuing leases?

[00:21:19] Speaker 03:
I believe that the secretary- You have come in then and said, wait a minute, before you do that, you have to take some account of how this is going to affect the well-being of an economy of people that will suffer as a result of this.

[00:21:36] Speaker 06:
Yes, I don't believe that the Secretary has discretion under the Mineral Leasing Act to permanently pause all coal leasing.

[00:21:42] Speaker 06:
And so to the extent that they said that we are not going to issue any leases at all, I think that there would be a basis to challenge that.

[00:21:51] Speaker 06:
I think to the extent that the Secretary elects to reprioritize their discretion, there are obviously that's a different question.

[00:21:59] Speaker 03:
And if they said, we won't, we're going to have a pause until we issue a new PEIS.

[00:22:04] Speaker 03:
And the PEIS went out over years and years and years and years.

[00:22:07] Speaker 03:
And the secretary said, well, we're still working on it.

[00:22:10] Speaker 03:
But effectively, it goes off beyond three years to five years to seven years.

[00:22:14] Speaker 03:
You have a writ of mandamus to issue a PEIS.

[00:22:17] Speaker 03:
Can this court order the secretary to issue the PEIS so that the coal leasing program can either go up or down?

[00:22:25] Speaker 06:
I mean, I think that's a great question.

[00:22:26] Speaker 06:
I'm not precisely sure where that sort of line would be drawn, but I do believe that there would be some indication or some need for that at some point.

[00:22:35] Speaker 06:
I mean, here, obviously, we're dealing with a one-year pause.

[00:22:38] Speaker 03:
What if the secretary gave an internal order to take a really, really hard look, not just a hard look, but a really, really hard look?

[00:22:48] Speaker 06:
I see that my time's up.

[00:22:49] Speaker 03:
Please go ahead and answer.

[00:22:52] Speaker 03:
And that had the effect of, as it was intended, to chill the approval of any coal leases.

[00:22:58] Speaker 03:
Is that reviewable?

[00:23:00] Speaker 03:
And would you have an action here?

[00:23:01] Speaker 03:
Would you be in here saying, these are not the same standards under which the secretary has previously conducted this program, and therefore it is a major federal action.

[00:23:14] Speaker 03:
It discourages.

[00:23:15] Speaker 06:
Yeah, I do think that there are instances where if the secretary's actions begin to reflect things that change the formal legal rights and obligations of the parties before them, then there would likely be some basis for challenging that.

[00:23:32] Speaker 06:
your hypothetical appears to get closer to that potential line.

[00:23:36] Speaker 06:
I'm not sure that that would necessarily go beyond their actual discretion, but I do think that there might be more something to explore in that particular instance.

[00:23:45] Speaker 06:
I don't believe that's what we have here, but I do think it would be a closer call.

[00:23:52] Speaker 05:
Okay, why don't we now hear from the appellees?

[00:23:56] Speaker 05:
And we'll have two minutes for rebuttal for the appellants.

[00:24:11] Speaker 04:
Good morning, Your Honor, and may it please the Court.

[00:24:13] Speaker 04:
I'm Sam Harbert on behalf of the Plaintiff States.

[00:24:16] Speaker 04:
I plan to focus this morning on the questions of jurisdiction, final agency action, and major federal action.

[00:24:22] Speaker 04:
My colleague, Ms.

[00:24:23] Speaker 04:
Harbine, on behalf of the organizational and tribal plaintiffs, plans to focus on the adequacy of the environmental assessment and the question of the proper remedy.

[00:24:31] Speaker 03:
Is one of you going to address mootness?

[00:24:34] Speaker 04:
Yes, sir, I was about to say I would like to start with mootness.

[00:24:39] Speaker 04:
So I think there are really two reasonable ways to view the mootness issue here, and they both lead to essentially the same result, which is that the case is not moot.

[00:24:48] Speaker 04:
So the first is the path the district court took, which was to say, despite what the Holland order may suggest on its face, the federal government is appearing before me in court and in its filings saying that under the Holland order,

[00:25:02] Speaker 04:
we have authority to issue new federal coal leases tomorrow without undertaking the environmental review that the plaintiffs argue is that we argue is necessary in this case.

[00:25:14] Speaker 04:
So for that reason, the Holland order did not, in the federal government's view, did not change the moratorium rescission under the Zinke order.

[00:25:22] Speaker 05:
But that would seem to be an issue with the Holland order.

[00:25:25] Speaker 04:
Well, Your Honor, that brings me to the second reasonable way of looking at this, which is to say, setting aside what the federal government was saying in its filings before the district court or in the Federal Register notice on this, that

[00:25:40] Speaker 04:
the Holland order does on its face purport to rescind the Zinke order in full, that would be a voluntary cessation of the challenge conduct.

[00:25:47] Speaker 04:
But voluntary cessation does not moot a controversy unless the party invoking mootness principles.

[00:25:53] Speaker 04:
And here, that's my friends on the other side, demonstrate that it is absolutely clear, absolutely clear that the challenge conduct could not reasonably be expected to recur.

[00:26:05] Speaker 04:
And here, I don't know how my friends on the other side could credibly make that

[00:26:10] Speaker 04:
Showing when the federal government is appearing before the district court saying in a very real sense that the challenge conduct has already recurred that we Intend to exercise authority to issue new federal coal leases without first undertaking the NEPA review that we argue is legally required Right, but this is a getting into a question of essentially traceability and redress ability because the case began and and remains a challenge to the Zinke order

[00:26:37] Speaker 05:
And that order has been formally revoked by Secretary Allen.

[00:26:41] Speaker 05:
So there may be some other challenges out there to Secretary Allen's order or to the BLM's interpretation of that order.

[00:26:48] Speaker 04:
But that's not this case with respect to honor.

[00:26:51] Speaker 04:
I disagree.

[00:26:51] Speaker 04:
So

[00:26:52] Speaker 04:
As to standing, standing is assessed at the beginning of the litigation, and we demonstrated standing under this court's well-established procedural violations standard at the inception of the case.

[00:27:03] Speaker 04:
Any questions that arise after the initiation of litigation are mootness questions, not standing questions, and a voluntary cessation of the challenged practice.

[00:27:12] Speaker 04:
And here, that's what the Holland order purports to do on its face, which is to accomplish a voluntary cessation.

[00:27:19] Speaker 04:
But that does not meet the controversy unless it is absolutely clear that the challenge conduct will not recur in the future.

[00:27:25] Speaker 04:
And the proper remedy in a case of voluntary cessation is to provide declaratory relief, which is essentially what the district court did here.

[00:27:33] Speaker 04:
It said that the rescission of the dual order moratorium

[00:27:37] Speaker 04:
needed to be accompanied by certain environmental review under NEPA and that the environmental assessment prepared by the federal government did not satisfy NEPA's requirements.

[00:27:51] Speaker 04:
If I could, Your Honors, turn to another question of jurisdiction, which is this court's appellate jurisdiction as to some of these threshold issues like final agency action under the APA and major federal action under NEPA.

[00:28:06] Speaker 04:
This court lacks jurisdiction to review those issues because they were decided by the district court

[00:28:11] Speaker 04:
before the entry of the first judgment in this case, which was in May 2020.

[00:28:17] Speaker 04:
And neither my friends on the other side nor the federal government filed an appeal after that final judgment.

[00:28:24] Speaker 04:
But didn't you file a new complaint under the same docket number?

[00:28:27] Speaker 04:
We did move for leave to file supplemental complaints under Rule 15.

[00:28:31] Speaker 03:
You could have filed an entirely new action under a new number, and that might have foreclosed the whole thing.

[00:28:35] Speaker 03:
When you filed it under the same, doesn't that reopen the case?

[00:28:38] Speaker 04:
It does not, Your Honor.

[00:28:40] Speaker 03:
I confess- What did it do?

[00:28:42] Speaker 04:
Your honor, it initiated the equivalent of a new proceeding or new lawsuit.

[00:28:47] Speaker 03:
But it didn't.

[00:28:48] Speaker 03:
You reopened under the same docket number.

[00:28:51] Speaker 03:
I mean, the docket number feels pretty ministerial, but it also feels like a pretty big symbol that this is the same case.

[00:28:57] Speaker 04:
Your Honor, the reason for proceeding by the supplemental complaint procedure were for reasons of administrative convenience that we spelled out in our motion for the supplemental filing.

[00:29:07] Speaker 04:
But what I point you to, Your Honor, is an analogous context where this court has addressed in cases like Harmon v. Harper.

[00:29:18] Speaker 04:
And that's 7F3 1455.

[00:29:21] Speaker 04:
And it's not quite the same as this case, but it's very close, which is where a district court enters an initial judgment.

[00:29:26] Speaker 04:
The time to appeal that judgment expires.

[00:29:29] Speaker 04:
And then the district court grants leave under Rule 60B to allow further proceedings in district court.

[00:29:35] Speaker 04:
And what this court held in Harmon, consistent with other federal appellate courts, is that at the culmination of those Rule 60B proceedings, all that can generally be appealed are issues that arise post Rule 60B grant, not issues that arose.

[00:29:48] Speaker 05:
That's a function of the rules.

[00:29:50] Speaker 05:
Right?

[00:29:50] Speaker 05:
I mean, here we're looking at a somewhat unusual situation where the district court entered the final judgment.

[00:29:55] Speaker 05:
I'm not frankly sure what the appellants would have had to appeal at that point anyway because the case was not necessarily decided adverse to them.

[00:30:04] Speaker 05:
But then the district court reopened the case.

[00:30:06] Speaker 05:
And so all of these rulings that you're talking about that led into the final judgment, I think now are better viewed as just simply interlocutory decisions along the way to what is now the ultimate final judgment.

[00:30:15] Speaker 05:
So it seems awfully difficult to fault them.

[00:30:17] Speaker 05:
for not appealing back in the day, given the way this litigation then progressed.

[00:30:23] Speaker 04:
I respectfully disagree, Your Honor, and I think because the issues decided final agency action and major federal action, if those had been reviewed on appeal at the time, then it could have foreclosed any further proceedings at the district court level.

[00:30:36] Speaker 04:
But if Your Honors disagree and exercise jurisdiction over those issues, we would ask the court to affirm.

[00:30:44] Speaker 04:
So as to final agency action,

[00:30:46] Speaker 04:
The moratorium rescission here was final for essentially the same reasons that the moratorium termination was recently treated as final in this court's environmental defense center case.

[00:30:57] Speaker 04:
That involved a very similar action where the federal government terminated a temporary moratorium on approvals of certain forms of offshore fracking.

[00:31:05] Speaker 04:
There just as here that the termination was definitive It wasn't interlocutory or tentative and it had the important legal consequence of Barring federal officials from approving new site specific, but it was just a three-year moratorium Is there a moratorium in perpetuity or was there a three-year moratorium?

[00:31:24] Speaker 04:
In this case, Your Honor.

[00:31:27] Speaker 04:
In this case.

[00:31:28] Speaker 04:
We would characterize the moratorium.

[00:31:30] Speaker 04:
We're not suggesting that it was intended to be permanent, but it was indefinite or ongoing in the sense that, as Your Honor suggested in a colloquy with my friend on the other side, that it had no automatic termination date.

[00:31:42] Speaker 04:
So it was set to remain in place until, and this is in Section 5 of the dual order, until completion of the PEIS.

[00:31:50] Speaker 04:
But completion of the PEIS is not an automatic or self-executing event.

[00:31:54] Speaker 04:
That's something that required further agency action, specifically the adoption of a document called the Record of Decision.

[00:32:01] Speaker 04:
That's discussed on page 559 of the Supplemental Excerpts of Record.

[00:32:06] Speaker 04:
That's where a final determination would have been made about whether it would make sense to adopt any of the reform proposals coming out of the PEIS.

[00:32:14] Speaker 04:
And, Your Honors, that's significant for NEPA purposes, because the relevant baseline or status quo from which you measure environmental effects in a NEPA case is the no action scenario, where you imagine what would happen if the relevant federal agency took no further action.

[00:32:30] Speaker 04:
And here, that would be a continuing moratorium.

[00:32:32] Speaker 04:
So that's how we would characterize it, Your Honor, as indefinite or ongoing.

[00:32:37] Speaker 04:
And for that reason, but even if the court characterizes it as temporary, that doesn't somehow categorically exempt its rescission from NEPA.

[00:32:46] Speaker 04:
The relevant standard for identifying a NEPA-triggering event

[00:32:50] Speaker 04:
is what this court has consistently referred to as a low bar or a low threshold.

[00:32:54] Speaker 04:
So in cases like California XREL Locker or Solar Energy Industries Association, the court made clear that the only question for purposes of identifying a NEPA-triggering event is whether the relevant federal action raises a substantial question about whether there may be a significant environmental effect.

[00:33:15] Speaker 04:
And here, in light of the profound environmental consequences threatened by the moratorium rescission, the district court rightly held that, at a minimum, that low threshold was satisfied.

[00:33:30] Speaker 03:
DOI does issue an EA, and you don't like the EA because it treats the whole thing sort of at the margins.

[00:33:36] Speaker 03:
That is, it says, look, you just lost two years because that was the time frame that was contemplated by the dual order for issuing the PEIS.

[00:33:45] Speaker 03:
You have now treated the EA as though they had to issue an EA that predicted how the PEIS would have come out and sort of told us then that you're going to have to conduct the PEIS.

[00:33:56] Speaker 03:
I don't understand how we issue an EIS on an EIS.

[00:34:01] Speaker 03:
It feels very regenerative and reiterative and feels a little strange.

[00:34:06] Speaker 04:
I understand your honor's concern, and I'd be happy to clarify, although I see my time is about to expire.

[00:34:14] Speaker 04:
Be happy to clarify, the environmental review we're requesting here is not equivalent to the PEIS that the Zinke order abandoned.

[00:34:22] Speaker 04:
There's certainly some overlap, but the scope is quite different.

[00:34:26] Speaker 04:
The scope of the PEIS was broader in at least a couple of respects.

[00:34:31] Speaker 04:
So what should the PEA have covered?

[00:34:34] Speaker 04:
The EA should, at a minimum, and I believe my colleague, Ms.

[00:34:37] Speaker 04:
Harbin, will speak about this in more detail, but at a minimum, it should have correctly identified the baseline, which was an ongoing or indefinite moratorium, and acknowledged and measured the environmental effects of lifting that indefinite or ongoing moratorium, including grappling with the serious

[00:35:01] Speaker 04:
Climate change related effects including the threat the threatened 1.1 billion tons in additional annual greenhouse gases per year The EA itself actually calculated that figure but it didn't take ownership or responsibility for opposing council suggested the secretary did not have the authority to issue a permanent moratorium as a Secretarial order every response to that

[00:35:24] Speaker 04:
Yes, Your Honor, we respectfully disagree.

[00:35:26] Speaker 04:
Now, again, we don't read... And they could have come in immediately and challenged the Juul order on that basis.

[00:35:32] Speaker 04:
We think the Juul order was final agency action that could have been challenged.

[00:35:37] Speaker 04:
They didn't bring that challenge.

[00:35:39] Speaker 04:
In terms of the Interior Secretary's authority, the Secretary of Interior and Secretary Juul laid this out in the Juul order itself.

[00:35:49] Speaker 04:
enjoys quite broad discretion under the Mineral Leasing Act in terms of how to administer and manage the federal coal leasing program.

[00:35:58] Speaker 04:
So we do believe that a so-called no new leasing alternative would be consistent with the Interior Secretary's authority, and that was

[00:36:08] Speaker 04:
one of the candidates seriously on the table for consideration as part of the PEIS, essentially a permanent extension of the moratorium.

[00:36:17] Speaker 03:
Right, but that would have been the result of the PEIS.

[00:36:21] Speaker 03:
This gets us back again to this reiterative process in which the EA has to tell us what the PEIS would have looked like so we know what kind of environmental impacts would have come out had they proceeded with the PEIS.

[00:36:34] Speaker 03:
Again, it feels very, very strange.

[00:36:36] Speaker 04:
And so, Your Honor, just to be clear, we're not necessarily saying that the EA here needed to make a predictive judgment about how the PEIS would have come out.

[00:36:45] Speaker 04:
What it needed to do was accurately measure the environmental effects of going back to coal leasing approvals from the indefinite or ongoing moratorium imposed by the Jewel Order.

[00:36:59] Speaker 04:
and then address potential alternatives to the Zinke order's decision to immediately and completely rescind the moratorium on a nationwide basis.

[00:37:08] Speaker 03:
But that didn't mean that any leases would be issued.

[00:37:10] Speaker 03:
It just sort of put it back in the status quo.

[00:37:14] Speaker 03:
It would be... And you were perfectly free to challenge every lease that the Zinke's DOI issued.

[00:37:22] Speaker 04:
That's true, your honor, although the court has made clear in a number of cases that an agency's promise or intentions of engaging in additional environmental analysis at the site-specific level do not relieve it of its NEPA obligations at the programmatic level if it undertakes a programmatic level major federal action as it did here.

[00:37:42] Speaker 05:
But at this point, this starts to sound artificial because we're talking about a Zinke order

[00:37:47] Speaker 05:
that doesn't exist anymore.

[00:37:48] Speaker 05:
So we're having to go back and say, this is what Zinke should have done at the time, but we now know that that entire order has been revoked.

[00:37:57] Speaker 04:
Your Honor, and I appreciate that that is a somewhat odd dynamic, but I think that it's just inherent in the voluntary cessation doctrine created by the Supreme Court, which is that when a party has standing at the inception of a case and then there's a subsequent development that changes

[00:38:15] Speaker 05:
I mean, voluntary sensation is usually when you do so in response to litigation.

[00:38:19] Speaker 05:
It seems that that is not what happened here.

[00:38:21] Speaker 05:
It seems that this new administration has decided to have a different policy than the prior one.

[00:38:26] Speaker 05:
That's not in reaction to a district court decision.

[00:38:29] Speaker 05:
That's just a change in administration.

[00:38:31] Speaker 04:
And Your Honor, involuntary cessation absolutely applies in those types of scenarios.

[00:38:35] Speaker 04:
I'd point the court, for example, to the Supreme Court's recent decision in West Virginia versus EPA, where there was a change across administrations.

[00:38:42] Speaker 04:
And the court held that that was not sufficient to move the controversy under the voluntary cessation doctrine.

[00:38:48] Speaker 05:
But what we're talking about here is not just the change in administration.

[00:38:51] Speaker 05:
We're talking about the revocation of the order that was what produced the lawsuit in the first place.

[00:38:56] Speaker 04:
And that was the same scenario the Supreme Court addressed in West Virginia, the rescission of the policy, the Clean Power Plan that produced the lawsuit at issue.

[00:39:08] Speaker 05:
Do you agree the district court described the Zinke order as still remaining in partial effect?

[00:39:12] Speaker 05:
Do you think that's the right way to think of this?

[00:39:15] Speaker 04:
I think that that is one reasonable way to think of it based upon the statements made in the Federal Register and in litigation briefs filed before the district court.

[00:39:24] Speaker 04:
But as I mentioned a few moments ago, the second kind of alternative path here to finding the case not moot would be to take the Holland order on its face and hold that my friends on the other side have not satisfied the high bar for showing a voluntary cessation-based mooting event.

[00:39:44] Speaker 05:
Okay.

[00:39:44] Speaker 05:
Well, we let you go over.

[00:39:45] Speaker 05:
Why don't we hear from your co-counsel?

[00:39:47] Speaker 04:
Thank you, Your Honors.

[00:40:01] Speaker 00:
Thank you.

[00:40:01] Speaker 00:
May it please support Jenny Harbine for the Northern Cheyenne Tribe and the conservation organizations.

[00:40:08] Speaker 00:
My argument, as Mr. Harbord indicated, will focus on issues pertaining to the district court's 2022 order, namely NEPA compliance and remedy.

[00:40:18] Speaker 00:
But I do want to address, given Your Honor's questions about mootness, that issue just briefly first, which is to note that mootness is different in

[00:40:30] Speaker 00:
the NEPA context.

[00:40:31] Speaker 00:
This court explained in the Cantrell case that litigants face an especially heavy burden to demonstrate mootness when NEPA compliance is at issue because in NEPA cases, the harm is in addition to the harm on the ground, there's a procedural

[00:40:52] Speaker 00:
And ordering an agency to go back and evaluate alternatives or mitigation measures, even after a challenged action is completed, as it was in the Cantrell case, there were some historic buildings on a naval base that were at issue in plaintiff's complaint that were subsequently demolished.

[00:41:15] Speaker 00:
The Ninth Circuit said, even in a case like that, remanding for further review is partial effectual relief.

[00:41:22] Speaker 00:
sufficient to rescue a case from mootness, and that certainly applies here.

[00:41:27] Speaker 03:
So, counsel, so if the Juul order had said we're going to have a moratorium that we contemplate will last about three years pending the issuance of a PEIS, so let's suppose that the PEIS proved to be a much more difficult process, and at the end of three years, Secretary Juul says,

[00:41:45] Speaker 03:
Well, we're still working on the PEIS.

[00:41:47] Speaker 03:
It doesn't seem fair or proper to extend the moratorium any longer.

[00:41:53] Speaker 03:
So we're going to undo the moratorium.

[00:41:55] Speaker 03:
And I'm instructing staff to redouble their efforts to get the PEIS out.

[00:41:59] Speaker 03:
All really good faith above board.

[00:42:02] Speaker 03:
Boom, you are in here, aren't you?

[00:42:04] Speaker 00:
Absolutely.

[00:42:05] Speaker 00:
Yeah.

[00:42:05] Speaker 03:
That's a major action.

[00:42:06] Speaker 03:
And that suggests that here's the point, counsel.

[00:42:09] Speaker 03:
That suggests that no secretary of the interior should ever tie their hands in the future by taking such a step.

[00:42:15] Speaker 00:
The important thing here, and this is an unusual case, when Secretary Jewell imposed the moratorium, it wasn't just to do some paperwork.

[00:42:24] Speaker 00:
It's because Interior made a determination, regardless under what administration the Secretary served, Interior made the determination that reforms were needed to the coal leasing program to satisfy Interior's

[00:42:38] Speaker 00:
statutory obligations under FLIPMA and the Mineral Leasing Act.

[00:42:43] Speaker 00:
That was stated in the Jewel Order.

[00:42:46] Speaker 00:
It was re-emphasized in the 2017 Scoping Report just two months before the Zinke Order issued that reforms were needed.

[00:42:58] Speaker 00:
to the federal cold program.

[00:43:00] Speaker 00:
And Interior said at the time, in light of this need for reforms, does not make sense to continue to issue new leases under outdated rules and processes that may not satisfy Interior statutory obligations.

[00:43:15] Speaker 00:
That's in the supplemental excerpts at page 715, again at 720.

[00:43:21] Speaker 00:
And this is important, we've talked a lot about

[00:43:25] Speaker 00:
what the agency's obligation is to forecast what would have happened if the Zinke order hadn't revoked the Jewell order.

[00:43:37] Speaker 00:
The key from this court's case law is you have to make reasonable judgments in that case.

[00:43:44] Speaker 00:
Interior seemed to acknowledge that the baseline for its environmental review for the Zinke order was continuation of the Jewell order.

[00:43:55] Speaker 03:
And so counsel, is your position that opposing counsel's clients could have come in and filed a NEPA suit as soon as the Juul order came out?

[00:44:05] Speaker 00:
I think there would be a question there of whether an order that maintains the status quo.

[00:44:10] Speaker 03:
No, this is an order that issues a moratorium.

[00:44:13] Speaker 00:
Oh, if?

[00:44:14] Speaker 03:
The original Juul order issues a moratorium.

[00:44:16] Speaker 03:
So opposing counsel's clients could have come in, under your theory, and filed a NEPA

[00:44:23] Speaker 03:
a NEPA suit against the secretary for taking major federal action in enacting a temporary moratorium pending the preparation of a PEIS.

[00:44:33] Speaker 00:
In such a case, the court would have to grapple with the Douglas V County line of precedent and ask whether maintaining the status quo through the issuance of a moratorium was a major federal action.

[00:44:46] Speaker 00:
My clients would assert that it's not.

[00:44:49] Speaker 03:
They're not maintaining the status quo.

[00:44:50] Speaker 03:
The status quo was that they could issue leases.

[00:44:52] Speaker 03:
the dual order changes that and issues a temporary moratorium pending the completion of a PEIS.

[00:44:59] Speaker 03:
Now, if that's major federal action to enact a temporary moratorium, then the National Mining Association of Wyoming and Montana, under your theory, could come in and file a suit demanding that NEPA be complied with before they issue that major federal action, right?

[00:45:17] Speaker 00:
I think it's a question whether or not that would be the case.

[00:45:21] Speaker 00:
I was surprised to see... Why would that be the case?

[00:45:22] Speaker 03:
You just told us that this was a major federal action to issue this order.

[00:45:25] Speaker 03:
It was a major federal action, certainly, to lift the moratorium and commit to environmental... But not to issue the moratorium in the first place, only to undo the moratorium, which would reinstate the status quo?

[00:45:37] Speaker 00:
My clients don't have a position whether or not the dual order itself was a major federal action.

[00:45:43] Speaker 00:
I was surprised to hear my friends here today say that it was not.

[00:45:48] Speaker 00:
There was absolutely a case pending in King County, Utah, challenging the dual order on NEPA grounds that was subsequently dismissed without prejudice, and I'm not aware of any refiling of that case.

[00:46:00] Speaker 00:
But regardless of whether the Juul order was a major federal action, certainly the Zinke order was.

[00:46:06] Speaker 00:
And let me explain.

[00:46:07] Speaker 00:
The Juul order had prevented all or most federal coal leasing.

[00:46:17] Speaker 00:
At the time,

[00:46:17] Speaker 00:
Zinke's Interior evaluated that order, it said the moratorium was impeding coal production, even threatening some mine closures.

[00:46:27] Speaker 00:
And so in this NED memorandum, they said it's important that we revoke the moratorium in order to reverse these impacts.

[00:46:35] Speaker 00:
And they touted this as an historic action to revitalize the coal industry.

[00:46:41] Speaker 00:
But the EA, when it

[00:46:43] Speaker 00:
got around to look at the impacts of revoking that moratorium, illogically concluded that it had no impact whatsoever, not for coal production, not for the climate, air, water quality, tribal cultural resources, no impacts whatsoever.

[00:47:00] Speaker 00:
And this deeply flawed conclusion stemmed from a no-action alternative that assumed that the moratorium would have ended regardless.

[00:47:12] Speaker 00:
And I think, as Your Honor pointed out, the moratorium didn't have an end date, an expiration date on its own terms.

[00:47:20] Speaker 00:
Instead, it was to be revoked only after, or modified or rescinded only after Interior had completed an EIS

[00:47:30] Speaker 00:
that would evaluate reforms that it said were needed to the federal coal program.

[00:47:42] Speaker 00:
The EA's assumption that absent the Zinke order, leasing would simply have resumed under a prior leasing framework that Interior itself said needed reform without Interior first having assured itself that it would meet its statutory obligations was arbitrary.

[00:48:00] Speaker 00:
And this no-action alternative violated NEPA in much the same way that this court rejected in the 2010 Center for Biological Diversity case.

[00:48:09] Speaker 00:
So in that case, the court rejected a no-action alternative to a proposed land exchange that assumed that mining would occur in the same manner and to the same extent, regardless of whether or not the land remained in federal ownership.

[00:48:24] Speaker 03:
Council, I'm wondering whether there's anything special about the use of the term moratorium.

[00:48:28] Speaker 03:
What if the Jewel Order had said, in the interim, while we're preparing the PEIS, we're going to slow-walk these, and then

[00:48:38] Speaker 03:
The Zinke order said, we're not going to slow-lock them.

[00:48:42] Speaker 00:
I think the importance of the language of the dual order is in its legal and its practical effect.

[00:48:48] Speaker 00:
So as a legal matter, BLM was prevented from issuing most new coal leases.

[00:48:55] Speaker 00:
Under the Zinke order, that was reversed.

[00:48:58] Speaker 00:
And that legal impact is what informs both final agency action and major federal action

[00:49:04] Speaker 00:
in this case, and as well informs the consideration of what the practical environmental consequences of that decision was.

[00:49:14] Speaker 05:
Could your clients today sue and challenge the Halland order for not imposing a moratorium that you think is required?

[00:49:22] Speaker 00:
No.

[00:49:23] Speaker 00:
And whatever impact the Halland order had is unclear.

[00:49:28] Speaker 00:
And the Department of Interior isn't here today to tell us what impact there was.

[00:49:34] Speaker 00:
But when the Department of Interior appeared before the district court, counsel was asked, what is the impact of the Halland order?

[00:49:43] Speaker 00:
And they said, well, we're no longer expediting coal leases.

[00:49:46] Speaker 00:
But we remain as free to issue new coal leases, BLM does,

[00:49:51] Speaker 00:
today after the Holland order, as we did immediately before the Holland order issued.

[00:49:58] Speaker 00:
For that reason, the Holland order didn't eliminate harm to my clients, didn't eliminate the potential for harm from future coal leasing, and didn't eliminate the potential for effectual relief.

[00:50:11] Speaker 05:
At the top of this exchange, I think you indicated that you could not sue currently and challenge the Holland order.

[00:50:17] Speaker 05:
Why do you think that?

[00:50:19] Speaker 00:
I'm not aware of any impact that would give rise to my client standing under the Holland order.

[00:50:27] Speaker 00:
And just to be frank, I don't know what the Holland order did.

[00:50:31] Speaker 00:
Nominally revoke the Zinke order, but didn't revoke the actions that were embodied in the Zinke order, namely the one challenged by my clients to reopen federal public lands to coal leases with 20-year terms.

[00:50:48] Speaker 05:
But, yeah, what's the source of that?

[00:50:49] Speaker 05:
I mean, getting, trying to get, again, sort of cycling back, circling back to the mootness issue.

[00:50:54] Speaker 05:
If you have uncertainty about the status of a moratorium, does that not rest on a challenge to the Howland order?

[00:51:03] Speaker 00:
No, the moratorium was put in place by the Jewel Order, lifted by the Zinke Order, and untouched by the Holland Order.

[00:51:11] Speaker 00:
Our challenge is to the Zinke Order and its decision to reopen public lands to coal leasing without first examining the environmental consequences of that decision, and that remains.

[00:51:23] Speaker 05:
Even though it's been revoked?

[00:51:27] Speaker 00:
decision that we challenged was the decision to Reopen public lands to coal leasing the decision to revoke the moratorium The Holland order didn't touch that that court decision that we're challenging And so it's our position that the Holland order has no impact on this case Okay May I just remedy briefly your honor I

[00:51:49] Speaker 00:
that briefly yes uh... parents complain that the district court remedy somehow constituted an injunction and uh... ordered interior to restart the dual order p e i s and i want to be clear that that the district court

[00:52:06] Speaker 00:
knew very well what it was doing.

[00:52:09] Speaker 00:
It was not instituting an injunction.

[00:52:12] Speaker 00:
It looked at the US Supreme Court precedent, Monsanto, and the court's distinction between injunctions and Baketer.

[00:52:23] Speaker 00:
Instead, by vacating the decision to lift the moratorium,

[00:52:29] Speaker 00:
The moratorium is reinstated unless and until Interior undertakes proper environmental review of a decision to again lift that moratorium.

[00:52:42] Speaker 00:
And in fact, Interior has already shown that this remedy isn't difficult to decipher or implement because in May 2023, Interior finally commenced a NEPA process designed to evaluate the question at hand, which is whether or not to retain the moratorium on federal coal leasing.

[00:53:03] Speaker 00:
Until such review occurs, the moratorium is essential to minimize further unexamined environmental harm from coal leasing.

[00:53:11] Speaker 00:
And we ask this court to affirm.

[00:53:14] Speaker 05:
Thank you.

[00:53:15] Speaker 05:
And we'll hear a rebuttal.

[00:53:23] Speaker 01:
Thank you, Your Honor.

[00:53:24] Speaker 01:
I'll just start with the last point.

[00:53:26] Speaker 01:
Of course, it was an injunction.

[00:53:27] Speaker 01:
We started with a voluntary PEIS and pause, and now Interior can't lease any coal until the court says it can.

[00:53:35] Speaker 01:
So that's clearly meets the definition of an injunction.

[00:53:39] Speaker 01:
Plaintiff's entire case is built on a house of cards, as this was a reset of a coal program.

[00:53:44] Speaker 01:
And that action just simply doesn't exist.

[00:53:47] Speaker 01:
California Council

[00:53:48] Speaker 01:
admitted that there's broad discretion under the existing statute.

[00:53:52] Speaker 01:
That's exactly what they did under both secretarial orders about how they were going to process federal coal leases.

[00:54:01] Speaker 01:
There is no action for violations of the dual order.

[00:54:05] Speaker 01:
This court found both in Whitewater that there was

[00:54:14] Speaker 01:
a proper action against the Department of Homeland Security there for failure to comply with NEPA, DHS would have liability for noncompliance with NEPA or other federal law, not for its noncompliance with the manual that was challenged there.

[00:54:29] Speaker 01:
This Bennett's second prong for final agency action wasn't met because, quote, the challenge action did not impose new legal requirements or alter the legal regime to which DHS is subject, end quote, and that's simply

[00:54:42] Speaker 01:
What what happened here with respect to opposing counsel the The PIS was sim I mean the pause simply was just to do NEPA work There was no determination no findings the whole point was determined what our policy should be should there be any changes whatsoever there were just ideas thrown out there including by

[00:55:01] Speaker 01:
the plaintiffs here, but there was no determination that any of that was necessary.

[00:55:06] Speaker 01:
On mootness, again, I think the court's right that this case is moot.

[00:55:11] Speaker 01:
The Zinke order is gone.

[00:55:12] Speaker 01:
The challenge conduct, the plaintiffs don't say what that is.

[00:55:15] Speaker 01:
What they really mean is the coal program.

[00:55:17] Speaker 01:
They don't want any federal coal leasing, but they don't challenge the coal program here.

[00:55:20] Speaker 01:
They challenge the Zinke order, and the Zinke order is gone.

[00:55:23] Speaker 01:
The last thing I'll say is that on, I'm sorry, two more quick things.

[00:55:27] Speaker 01:
On the PEIS, again, it's just semantics, the Juul order was the same as what the court ordered here and what plaintiffs look at, all the court has to do is compare section four of the Juul order, which is what the PEIS was to include against plaintiffs' complaint for why the EA was insufficient.

[00:55:46] Speaker 01:
Those are the same factors, royalty rates, carbon budgeting,

[00:55:49] Speaker 01:
things that go beyond simple, you know, air or climate or effects.

[00:55:55] Speaker 01:
Last thing is that this case is really important to reverse because the district court endorsed abuse of NEPA and programmatic challenges that this court has rejected, including in Whitewater and other cases.

[00:56:12] Speaker 01:
If this secretarial order is challengeable, it's hard to draw a line as to what other

[00:56:18] Speaker 01:
types of quote final agency actions would be challenged, it would really

[00:56:23] Speaker 01:
create a freeze in the regulatory processes because any change in policy, however it's communicated, would simply trigger NEPA review and it would have to be paused regardless of change in administration, policy, whatever.

[00:56:37] Speaker 01:
That's just simply not what happened here.

[00:56:39] Speaker 01:
Unless the court has more questions, I ask that the court reverse the district court for lack of jurisdiction or for lack of a NEPA violation and at a minimum dissolve the mandatory injunction.

[00:56:53] Speaker 02:
Council, I have a question.

[00:56:56] Speaker 02:
When you say we should reverse the district court order, I have the same point I was raising earlier.

[00:57:05] Speaker 02:
Why can't we just vacate the district court order so we're not making a substantive determination on the environmental issues?

[00:57:19] Speaker 01:
Your honor, I may have misspoken.

[00:57:21] Speaker 01:
I believe the court could vacate the district court order for mootness or other lack of subject matter jurisdiction without ruling on the merits of the NEPA claims here.

[00:57:31] Speaker 01:
Do you think?

[00:57:32] Speaker 01:
Yes, your honor, and that could be on mootness or lack of final agency action, any of those grounds.

[00:57:38] Speaker 01:
If the court does get to NEPA, we find that what the Interior did, did satisfy NEPA if it was triggered.

[00:57:48] Speaker 05:
Okay, I want to thank all counsel for the briefing and argument in this case and this matter is submitted and we will stand in recess until tomorrow morning.

[00:57:55] Speaker 01:
Thank you, Your Honor.