[00:00:04] Speaker 04:
Good morning, everyone.

[00:00:05] Speaker 04:
Good morning to the Ninth Circuit.

[00:00:08] Speaker 04:
We have three cases that we have for argument today.

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Two additional cases have been submitted on the briefs, and they are Leap versus Nordstrom.

[00:00:20] Speaker 04:
That's 23-2661.

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In addition, Green Technology, Lighting Corp versus

[00:00:28] Speaker 04:
and Associates Insurance 24-66.

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That matter is also submitted on the briefs.

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Our first matter that we have for argument is Friends of Gualala River versus Gualala Redwood Timber.

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So whenever council you're ready, you can proceed.

[00:00:51] Speaker 02:
Thank you, your honor.

[00:00:53] Speaker 02:
If it may please the court, Stuart Gross on behalf of plaintiffs, appellants, Friends of Guala River, and Center for Biological Diversity.

[00:01:01] Speaker 02:
The principal question in this appeal, and I'd like to reserve three minutes for rebuttal.

[00:01:06] Speaker 04:
Very well.

[00:01:07] Speaker 02:
The principal question in this appeal is one of basic due process.

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Can the Center for Biological Diversity lose forever its right to bring a de novo Endangered Species Act claim in federal court based solely on a finding that it shares the same interests as another party and that party

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lost a state administrative law proceeding in state court.

[00:01:32] Speaker 04:
Well, talk to me about Atwell and distinguish why that is not controlling and there is no privity under California law.

[00:01:40] Speaker 02:
Thank you, Your Honor.

[00:01:41] Speaker 02:
So in Atwell, there was actually no issue raised about due process limitations.

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I direct the court to Arias versus Superior Court.

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That is the Supreme Court case.

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It is 46 Cal 4th, 969, 2009.

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In that court, the California Supreme Court cited Taylor to define the contours of parties, the categories of parties.

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That could be held to be in privity.

[00:02:16] Speaker 04:
Atwill is a 2018 case that's not been overruled, has it?

[00:02:22] Speaker 02:
Correct.

[00:02:22] Speaker 04:
It is not, but you're... So distinguish that from me because I'm not sure I understand.

[00:02:28] Speaker 04:
I understand that it was a Supreme Court decision.

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I guess I don't understand why Atwill is wrong.

[00:02:32] Speaker 02:
Right.

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What I would say, Your Honor, is this.

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In Atwell, it appears based on the argument that the party against you, the absent party, did not raise the issue of due process limitations.

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And if you look at the case that Atwell relies predominantly on, I think it's called, and I may have it slightly wrong here, Your Honor, Penta-Air along those lines.

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If you look at that case, at the bottom of that case, it notes that the party against who, the absent party, raised the due process concerns late, had not raised them below, and they were deemed waived.

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So that was a case in which Atwell and the one before it, where a party did not raise those due process concerns.

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I'd also point your honors to Richards and South Central Telephone.

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Both of those cases make very clear that while state's courts are free to apply their own res judicata rules, they are bound as they have to be by the limitations of the 14th Amendment's due process guarantees.

[00:03:45] Speaker 04:
In an at-well, the issue- So you're asking us to hold this entire area of law California unconstitutional is what you're asking us to do?

[00:03:56] Speaker 02:
Absolutely not.

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So in Arias, the California Supreme Court made clear that California res judicata law, its privity rules in particular, are hemmed in, if you will, by the 14th Amendment's due process guarantees.

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So we are not saying in any way that the primary rights theory is intrinsically unconstitutional.

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or that California's privity rules are intrinsically unconstitutional.

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They simply must be applied in a way that's consistent with what the Supreme Court in Taylor, Richards, South Central Telephone, all found were the limits of privity that can be applied.

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in any setting.

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And I'd point, Your Honor, also to the defendant's brief, where they acknowledge that the 14th Amendment's due process guarantees, as articulated by the Supreme Court and Richards, they do define the outer contours.

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by which the res judicata rules of states can be applied.

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And in Richards in South Central, Telephone, as I've been noting, the reason I'm noting that is both of those cases dealt with Alabama state res judicata rules.

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So just as in any setting,

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A state is not free to compromise the constitutional rights of people before it.

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The same is true with res judicata rules.

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Weren't you all seeking the same injury, excuse me, identifying the same injury and seeking the same relief?

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In the two cases?

[00:05:48] Speaker 02:
Yes.

[00:05:49] Speaker 02:
No.

[00:05:50] Speaker 02:
So, yeah, the first case, so if you look at primary rights, so if we want to dive into that, what's critical there, and the Adams Farming case, I believe, defines this well.

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It's won by this court from 1994, I believe.

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What you look at is the right and the duty of the particular defendant.

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Here, what we're talking about is both a different right, a different duty, and a different defendant.

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In the state court proceeding, what Friends of Guala River was doing was suing the California Department of- Cal Fire.

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A Cal Fire, not Guala Redwood Timber, different defendant.

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It was also suing to compel the California Department of Fire

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to redo its analysis of the THP.

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That is not the relief that were being sought here.

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The relief that was sought in this case was very straightforward.

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It was prevent the take of species that were listed as threatened and that were listed as endangered.

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That is a different right and it is a different duty of a different defendant.

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Council, I'd like you to assume that I don't think that your clients are subject to race judicata, that they can maintain the suit.

[00:07:08] Speaker 03:
Why isn't the case moot?

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Absolutely, Your Honor.

[00:07:11] Speaker 02:
The case is not moot because the court can still remedy the harms that the plaintiffs have identified.

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What authorizes us to remedy the harms?

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You're suggesting that the court can craft mitigating

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Mitigating measures.

[00:07:26] Speaker 03:
Well, we can request those mitigating measures and we request those mitigating measures from whom from from go all redwood timber Right, but but enforced by whom who gets to determine what's adequate?

[00:07:37] Speaker 03:
Well, what would determine what is adequate your honor that would be subject to expert testimony So yeah, but you're but you're asking but ultimately though you're asking the court to impose this correct.

[00:07:48] Speaker 03:
Okay, so

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What authorizes us to impose mitigating measures in an ESA case?

[00:07:54] Speaker 02:
Thank you, Your Honor.

[00:07:56] Speaker 02:
So I would point, Your Honor, to the most recent case in this long line of cases that defines mootness about whether or not a remedy is available.

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This case, the case in particular, is NRDC versus Hanlon.

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That was an Endangered Species Act case.

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The court has the authority to craft remedies to prevent ongoing take, which is what plaintiffs allege is occurring here.

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And we have, in our complaints, specifically defined measures for asking.

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In that case, had the take taken place?

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In that case, that was a Section 7 case.

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Section 7 is very different.

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In Section 7, there is statutory authorization for the idea of mitigating circumstances.

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That is, the agency is told that they may offer reasonable and prudent alternatives.

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That language does not appear in Section 9.

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What's available in Section 9 is an injunction which you didn't appeal.

[00:08:55] Speaker 02:
We did it.

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We've appealed.

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You dismissed it.

[00:08:58] Speaker 02:
Right.

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We appealed the preliminary injunction.

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That's right.

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And that's correct, Your Honor.

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That's right.

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And we did that because.

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So an injunction against the take is no longer available to you in the sense of preventing the take of the trees.

[00:09:11] Speaker 02:
I would point.

[00:09:11] Speaker 02:
Well, it was not the trees that we were focused on.

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It was the salmonids, the frogs, and certain types of birds.

[00:09:18] Speaker 01:
But the take was caused by the timber activities, which no longer are taking place and cannot be in violation of the ESA under Section 9.

[00:09:32] Speaker 01:
Isn't that correct?

[00:09:33] Speaker 02:
Well, Your Honor, as we allege in the complaint, the effect of those taking of those removal of the trees is ongoing and continuing.

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So there is still take a group.

[00:09:45] Speaker 01:
How can you enjoin the effect

[00:09:48] Speaker 01:
This is a tree cutting when the tree has been cut.

[00:09:51] Speaker 01:
I'm missing something.

[00:09:53] Speaker 02:
So, Your Honor, without diving too far into the weeds, for example, one of the allegations we had of TAKE was habitat modification, that there was harassment being caused by the deprivation of woody debris and for increased dust.

[00:10:08] Speaker 02:
That's gone.

[00:10:09] Speaker 02:
That's over with.

[00:10:09] Speaker 02:
But you could bring woody debris, Your Honor, back into the streams.

[00:10:14] Speaker 02:
So there are measures that can be taken now.

[00:10:18] Speaker 03:
So is an ESA suit continue to be open after the take has occurred?

[00:10:24] Speaker 03:
So even if the agency had approved the take, you can come in years later

[00:10:30] Speaker 03:
and ask for mitigating circumstances?

[00:10:33] Speaker 02:
So Your Honor, in a circumstance where the take had fully occurred prior to the filing of the lawsuit,

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I will not opine about whether or not that lawsuit could be brought.

[00:10:45] Speaker 02:
That would be one of standing, which Laylaw makes clear is a different standard than one of mootness.

[00:10:50] Speaker 02:
So what we have here is a situation where there certainly was not a take when we filed this action.

[00:10:57] Speaker 02:
Once that action was underway, then certain of the measures we were seeking to stop occurred, but there is still remedy that can be provided.

[00:11:08] Speaker 03:
The suits that involve measures, of course, are actions involving the secretary's approval of the project.

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And again, under Section 7, reasonable and prudent measures may be taken by the secretary as a condition of getting the take.

[00:11:27] Speaker 03:
That's no longer possible, and you're now asking us to step in in place of the secretary after the take has occurred and order who knows what.

[00:11:36] Speaker 03:
Your Honor, I've gone over my time.

[00:11:38] Speaker 03:
May I continue?

[00:11:39] Speaker 03:
I'm going to ask the Chief to allow you to answer these questions.

[00:11:42] Speaker 02:
I'd point, Your Honor, to Kentrell.

[00:11:44] Speaker 02:
So Kentrell involved both the Navy and Long Beach.

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And in that case, what you had was a situation where a number of buildings had been destroyed.

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And the plaintiffs alleged that the habitat of certain birds was disturbed thereby.

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And the defendants in that case, including Long Beach and the Navy, and the Navy in this situation was not a regulator, it was an owner, the defendants said, there's nothing more you can do here, you cannot rebuild the buildings.

[00:12:16] Speaker 02:
This court said that is not correct, that that results in mootness, because there is still things that could be ordered to mitigate the harm.

[00:12:26] Speaker 03:
That, of course, is a NEPA case, not an ESA case.

[00:12:28] Speaker 03:
That's correct, Your Honor.

[00:12:30] Speaker 03:
It seems to me that it does make a difference, because your remedy in a Section 9 case against a private party is an injunction.

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And I don't see that reasonable and prudent measures is in the statutory language.

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That's what the secretary may require as a condition.

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And one of the reasons that that's fair, looking at the broad scheme, is because then the applicant knows whether the cost of conducting the take is worth the price.

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And in this case, we're talking about imposing something post hoc.

[00:13:02] Speaker 02:
And I think I'd point to a couple of things, Your Honor.

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First, there was never an incidental take permit that was applied for here.

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So there were never reasonable and prudent measures that GRT was informed it should take by the only agency that could have given it immunity from such take.

[00:13:24] Speaker 02:
That's the first.

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The second is that a district court, its injunctive powers are broad.

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And that's what all of these cases that we rely on for the proposition that this case is not moot stand for.

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And given that breadth of injunctive power, the court has the authority to craft, vis-a-vis this defendant, measures that would mitigate

[00:13:52] Speaker 02:
take that has already occurred and that is continuing to occur.

[00:13:56] Speaker 03:
I went through these cases last night.

[00:13:58] Speaker 03:
Maybe I didn't go through all of them, but I certainly went through Cantrell and Cuddy and a number of others that have been cited to us.

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In all of those cases, the one thing that I noted was that the relief was sought against the agency, not against the applicant.

[00:14:12] Speaker 02:
And Your Honor, I don't believe respectfully in Cantrell.

[00:14:16] Speaker 02:
That's correct.

[00:14:17] Speaker 03:
Because... Cantrell may be different, but again, that's not ESA.

[00:14:20] Speaker 03:
It's a different statutory scheme.

[00:14:22] Speaker 03:
It's a different problem.

[00:14:23] Speaker 02:
It is a different statutory scheme, but I'd actually, Your Honor, if we're talking about NEPA versus Endangered Species Act,

[00:14:29] Speaker 02:
The breadth of relief that's generally available in an Endangered Species Act case relative to a NEPA case, it's actually far more relief is available in ESA Section 9 than NEPA.

[00:14:41] Speaker 02:
In a NEPA case, all you can get is go back and redo it, right?

[00:14:45] Speaker 02:
In an Endangered Species Act, the injunction is stop that take or remedy that take.

[00:14:52] Speaker 02:
That is actually a broader injunctive power that is given to courts than courts have in a NEPA context.

[00:15:00] Speaker 04:
Council, I think you've gone over a little bit, so I'll give you a minute afterwards, and we'll hear from the other side.

[00:15:06] Speaker 02:
Thank you very much, Your Honor.

[00:15:13] Speaker 00:
Good morning, and may it please the Court, Navi Dillon from Paul Hastings for Respondent.

[00:15:19] Speaker 00:
I will keep my remarks relatively brief.

[00:15:22] Speaker 00:
I'm happy to answer any questions.

[00:15:23] Speaker 00:
For better or for worse, I litigated all the state court proceedings, so I'm very familiar with the underlying record.

[00:15:28] Speaker 00:
I would give this observation.

[00:15:31] Speaker 00:
The federal case and the state case involve the same injury, the same relief, the same species, the same parties, save for CBD.

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And I'll say a bit about CBD.

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I think the question about or the comment about Atwell and the state court judgment, we think the lower court got it exactly right that the court of rendition here for the judgment, its substantive law for judgment purposes applies.

[00:15:54] Speaker 00:
And I think that really.

[00:15:55] Speaker 04:
How do you deal with Taylor?

[00:15:57] Speaker 00:
So the first point is Taylor, that dealt with the federal judgment.

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And under substantive choice of law rules, federal judgment law applies.

[00:16:05] Speaker 04:
Has it been cabin to federal law?

[00:16:09] Speaker 00:
I believe the California's judge

[00:16:12] Speaker 00:
jurisprudence on rest judicata complies fully with federal law.

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This court, in fact, has cited California rest judicata laws many times, post-Taylor, including in the last three or four years.

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So we don't see any conflict between federal law and state law from the perspective of the due process clause.

[00:16:31] Speaker 03:
Council, it's pretty clear that Judge Donato was not real patient with sort of the tag-team approach that was taken here.

[00:16:37] Speaker 03:
Let's suppose that the federal lawsuit had only been filed by the Center for Biological Diversity and not by the Friends.

[00:16:45] Speaker 03:
So, would Race to Dakota still have applied in that case?

[00:16:50] Speaker 00:
Your honor, I think it would depend on the underlying facts.

[00:16:53] Speaker 00:
I could see in a case.

[00:16:55] Speaker 03:
Well, you know the underlying facts.

[00:16:56] Speaker 03:
So tell me whether, in this case, CBD would have been prohibited from filing this suit by race judicata if the friends were not a party.

[00:17:07] Speaker 00:
I think the answer there is yes, your honor, that the record here before the court shows that there were multiple comment letters submitted by Fogger and their expert, Mr. Peter Bay, and I can give the record citations to that, supplemental ER 122 to 170 from 2016 to 2019.

[00:17:26] Speaker 00:
In each of those letters, there are detailed comments about species impacts to Cal Fire.

[00:17:32] Speaker 03:
That suggests that we have some kind of identity of identity of issues.

[00:17:37] Speaker 03:
I'm still trying to figure out why CBD would be barred from bringing this ESA suit as a separate suit if it was not a party to the original suit.

[00:17:46] Speaker 00:
So this goes to the question of privity, Your Honor, that you don't necessarily need to be a formal party for purposes of res judicata under California law.

[00:17:55] Speaker 00:
And I was referencing those facts to show, contrary to the argument from appellants, CBD was no stranger to the underlying proceedings.

[00:18:03] Speaker 03:
And from our perspective- Not a stranger in what sense?

[00:18:06] Speaker 00:
in the sense that it was fully on notice of the issues that were... On notice?

[00:18:10] Speaker 03:
I mean, you could just be reading the newspapers, right, and figure all of this out.

[00:18:14] Speaker 03:
You can be just an alert observer, but why would you then suspect that you would be barred from bringing a suit under a different statute in a different court?

[00:18:23] Speaker 00:
So, Your Honor, I guess it depends on whose perspective we're looking at this from, that from the perspective of

[00:18:30] Speaker 00:
CBD, would it be surprised that if it filed a second lawsuit, it would be barred from challenging the same determinations made by a state court agency to reduce to a final judgment?

[00:18:41] Speaker 00:
We don't think that should be a surprise.

[00:18:43] Speaker 00:
That should be a feature of judgment law, that at some point, all things must come to an end.

[00:18:48] Speaker 00:
And the state court proceedings, at the center of them, there was a requirement under state law that CAL FIRE make a determination that the THP complies with federal law.

[00:19:00] Speaker 00:
And that's a point that we made in our papers.

[00:19:02] Speaker 00:
The lower court made that observation as well.

[00:19:04] Speaker 00:
And that's a point that appellants don't have yet to provide a response to, that in effect, the federal action is a collateral attack on the state court action, which wasn't merely an administrative action.

[00:19:18] Speaker 00:
This was a mandamus proceeding brought under state law.

[00:19:21] Speaker 00:
We were joined as a party in that action as the real party.

[00:19:24] Speaker 00:
We were under an injunction for many years.

[00:19:27] Speaker 00:
and they had every opportunity to challenge the ESA determination that CAL FIRE necessarily was required to make, which overlaps completely with the issues in the federal action.

[00:19:39] Speaker 00:
And on the point of mitigation, I heard the questions about the trees have been felled, the goal posts have now moved to, well, we're worried about mitigation.

[00:19:48] Speaker 00:
That, in fact, was what we litigated in the state court proceedings, where there's a suggestion that there is a preference for take authorization,

[00:19:56] Speaker 00:
that this is a context where the case was focused on avoidance, that avoidance is preferable to allowing take.

[00:20:05] Speaker 00:
And so in the state court proceedings, the whole debate was, can you structure THP operations that would avoid take?

[00:20:13] Speaker 00:
And that was the goal, and mitigation was litigated to make sure that happened.

[00:20:19] Speaker 00:
And it was carefully reviewed by the Superior Court and the first appellate district here in San Francisco.

[00:20:25] Speaker 00:
in a very detailed decision that looked at all of these potential impacts.

[00:20:43] Speaker 00:
because of the felling of the trees.

[00:20:45] Speaker 00:
The trees are on the ground.

[00:20:46] Speaker 00:
And so from our perspective, that take mechanism is no longer viable.

[00:20:51] Speaker 00:
And again, now it's really a case about litigating the adequacy of the mitigation that has previously been approved and from a factual standpoint already implemented many years ago.

[00:21:02] Speaker 01:
You're familiar with the Taylor case.

[00:21:04] Speaker 01:
I am, Your Honor.

[00:21:05] Speaker 01:
Can you tell me which of the six categories of the Taylor case center fits?

[00:21:12] Speaker 00:
Your Honor, two responses.

[00:21:14] Speaker 00:
One, I think the Taylor case, Your Honor, is those the virtual representation construct doesn't necessarily apply here because of the state court judgment.

[00:21:23] Speaker 00:
But the categories related to would a party be reasonably expected to be bound by the judgment, Your Honor, I think those categories would apply as set forth in our answering brief.

[00:21:37] Speaker 01:
I'm not seeing that language reasonably

[00:21:40] Speaker 00:
You have to forgive me, Your Honor.

[00:21:41] Speaker 00:
If I could grab my opinion, I can.

[00:21:42] Speaker 00:
But our principal argument, Your Honor, is actually the Taylor analysis doesn't apply in this context, and the operative analysis is set forth in the Atwell decision and other California case law.

[00:21:56] Speaker 01:
Atwell is a California case.

[00:21:58] Speaker 00:
Yes.

[00:21:58] Speaker 00:
And so because we're dealing with a state court judgment, Your Honor,

[00:22:01] Speaker 00:
As a consequence, it's California law that applies from a choice of law standpoint, not federal law.

[00:22:07] Speaker 00:
Atwell dealt with a federal judgment.

[00:22:09] Speaker 00:
And I think Justice Ginsburg was careful to note that that case actually dealt with a federal judgment, not a state court judgment.

[00:22:16] Speaker 00:
And we believe the law on that point is crystal clear, including in this circuit that has many cases, including the Kamali decision from 2021, where California law was cited, including the concepts associated with privity.

[00:22:37] Speaker 00:
If there are no other questions, I'm prepared to submit on the papers, and I appreciate the opportunity.

[00:22:42] Speaker 01:
Aren't you going to discuss mootness?

[00:22:46] Speaker 00:
We set our positions in our papers, but a few points on mootness.

[00:22:52] Speaker 00:
We acknowledge the circuit law has some decisions that would suggest post-harvest, a case could still not be moot.

[00:23:00] Speaker 00:
And there are other cases that suggest that once the trees have been felled, there's no relief available.

[00:23:05] Speaker 00:
So we acknowledge that.

[00:23:07] Speaker 00:
And in our effort to reconcile the case law, we landed in the same place as I was picking up from some of the comments, is the through line seems to be when there's an agency involved.

[00:23:18] Speaker 00:
And perhaps that distinct doesn't apply uniformly in all the cases, but that was the through line that we saw.

[00:23:24] Speaker 00:
And we think it makes great sense for the reasons already mentioned in terms of the Section 7 regime is very different than the Section 9 regime.

[00:23:32] Speaker 03:
So some of the suggestions that they've made for mitigation, do you have any idea how much that would cost?

[00:23:37] Speaker 03:
How much would it cost your client at this point?

[00:23:40] Speaker 03:
I mean, the whole point is that if you knew what that cost was going in, you might have said, you know something, we withdraw the application.

[00:23:49] Speaker 03:
And that's why an agency sort of mediating this thing and negotiating and then subject to court review of what the agency has decided in mitigating circumstances is very different from us coming in post-hoc and saying, oh, let's just create a $100 million sinking fund and protect these species.

[00:24:07] Speaker 00:
Going forward you know that that that's exactly right my suspicion is it would be tremendously expensive to potentially comply with whatever mitigation could be imagined after the harvest has been completed I also think on the mitigation front to your point just from an from a standpoint of planning if you're a company they take this case we went through years of

[00:24:31] Speaker 00:
litigation, years of permitting processes, have hundreds and hundreds of mitigation requirements already set forth in the existing thermal harvest plan, only later than to have all of those issues re-litigated.

[00:24:45] Speaker 00:
That that is ultimately the consequence of allowing an ESA suit to be filed against the backdrop of what this THP has already undergone.

[00:24:56] Speaker 00:
And as to the mootness point

[00:24:59] Speaker 00:
And I think it comes through the lower court's opinion, and we've referenced it.

[00:25:03] Speaker 00:
This is the third, fourth, fifth lawsuit that we've dealt with.

[00:25:07] Speaker 00:
There's been two lawsuits in federal district court if that didn't come through the papers.

[00:25:11] Speaker 00:
The other lawsuit was before Judge Jehabria, identical in nature.

[00:25:15] Speaker 00:
And that lawsuit also involved a preliminary injunction proceeding.

[00:25:19] Speaker 00:
Judge Jahabria actually went with us to the property for a site visit.

[00:25:23] Speaker 00:
We went with counsel.

[00:25:25] Speaker 00:
We walked the site.

[00:25:26] Speaker 00:
And after that site visit, we held a preliminary injunction proceeding.

[00:25:30] Speaker 00:
The PI was denied.

[00:25:32] Speaker 00:
And that case actually was dismissed.

[00:25:34] Speaker 00:
And those two cases are indistinguishable.

[00:25:36] Speaker 00:
So when we hear the contention in this case that there's somehow ongoing take, when you had the identical lawsuit

[00:25:44] Speaker 00:
fully adjudicated and dismissed, it really begs the question of what's really going on here.

[00:25:48] Speaker 00:
And a point that we have tried to convey in our papers to the lower court, that these are lawsuits that are being brought just to be brought, that there have been promises that until our client chooses to sell this private land, we can expect further lawsuits.

[00:26:04] Speaker 00:
And there's been many of them, which is why we've been fighting so hard about res judicata.

[00:26:09] Speaker 00:
The principal finality

[00:26:11] Speaker 00:
is essential to blocking this kind of effort.

[00:26:15] Speaker 00:
And we appreciate environmental laws are critically important.

[00:26:19] Speaker 00:
We went through the state court proceeding.

[00:26:20] Speaker 00:
They achieved some successes there, and the THP wasn't enhanced.

[00:26:25] Speaker 00:
But at some point, it needs to stop.

[00:26:27] Speaker 00:
And this is our concern, that if we just allow these serial lawsuits, it sends the wrong message to businesses.

[00:26:35] Speaker 00:
And quite frankly, it makes it very challenging to actually plan.

[00:26:39] Speaker 04:
Hold on.

[00:26:39] Speaker 04:
Hold on, counsel.

[00:26:41] Speaker 04:
Are there any additional questions?

[00:26:43] Speaker ?:
I don't have any other questions.

[00:26:44] Speaker 04:
All right.

[00:26:45] Speaker 04:
Thank you.

[00:26:45] Speaker 04:
Thank you.

[00:26:53] Speaker 02:
Thank you, Your Honors.

[00:26:54] Speaker 02:
A couple quick follow-ups.

[00:26:56] Speaker 02:
First, the California Court of Appeals case that I noted before, that was Castillo versus Glenair, 23 CalAP 5th, 262.

[00:27:07] Speaker 02:
That is the one on which Atwell relies for privity.

[00:27:10] Speaker 02:
I direct Your Honors to that.

[00:27:12] Speaker 02:
Regarding a collateral attack, there cannot be a collateral attack here, because as defendants admitted in their briefing, no ESA claim was litigated at the court below.

[00:27:24] Speaker 02:
With regards to Taylor, Judge Bay, you asked which category would it have to fall in.

[00:27:29] Speaker 02:
The only category potentially available is the one that's referred to as adequate representation.

[00:27:35] Speaker 02:
In order for that to apply, you must have not only alignment of interests, but also

[00:27:40] Speaker 02:
the court either has to take care for the interests of the absent party, or the party litigating has to know they're litigating on behalf of the absent party.

[00:27:51] Speaker 02:
With regards to the, I see I'm out of time, your honor.

[00:27:55] Speaker 03:
All right.

[00:27:56] Speaker 03:
I'd like him to go ahead and finish the thought on moot.

[00:27:58] Speaker 03:
If you're going to address mootness, I'd like you to finish.

[00:28:00] Speaker 02:
Thank you, your honor.

[00:28:01] Speaker 02:
With regards to the cost of doing the mitigation measures, it hasn't been adjudicated yet, but I direct your honors to our request for relief.

[00:28:10] Speaker 02:
We request things like wood loading.

[00:28:12] Speaker 02:
This is literally putting logs into water.

[00:28:16] Speaker 02:
reduce of sedimentation.

[00:28:18] Speaker 02:
This is simply about maintaining roads.

[00:28:21] Speaker 02:
The mitigation measures being requested here are not draconian in any way.

[00:28:25] Speaker 02:
We have not adjudicated through expert testimony what they would cost, but I would direct your honors to the specific request.

[00:28:32] Speaker 03:
And why isn't all of this really unfair surprise?

[00:28:35] Speaker 02:
This is why, Your Honor, GRT knew from the beginning that there were endangered and threatened species where they were logging.

[00:28:43] Speaker 02:
What they could have and should have done is requested an incidental take permit from the Fish and Wildlife Service and from National Marine Fisheries Service.

[00:28:52] Speaker 02:
Why didn't you come in and say that you can't proceed until you get that?

[00:28:55] Speaker 02:
Well, that I do not.

[00:28:59] Speaker 02:
So I don't believe that is actually what we did.

[00:29:02] Speaker 03:
That is our case.

[00:29:04] Speaker 03:
But you didn't seek the PI.

[00:29:11] Speaker 03:
When you lost on the PI, you appealed it and then gave it away.

[00:29:15] Speaker 02:
Well, let me respond to that, because I think this is important for the point on vacator, if your honors believe it's moot, which we do not.

[00:29:23] Speaker 02:
We filed the emergency motion for a stay and the next day received their response that said the following day, all the trees would be cut down.

[00:29:32] Speaker 02:
So at that point, if we came before this court and said, court, we need to use all of your resources to stop the cutting down of these trees.

[00:29:43] Speaker 02:
there would have been no emergency relief that could have been granted.

[00:29:48] Speaker 02:
There is still and was, there is and was still relief that can be granted that has to do with mitigating the harm that was caused when the trees were cut down.

[00:29:59] Speaker 02:
So what we gave up, and it wasn't something we gave up, what we lost was the ability to stop the cutting of trees.

[00:30:08] Speaker 02:
And GRT is responsible for that, not the plaintiffs.

[00:30:12] Speaker 02:
As soon as the PI motion was denied, they called out every single available logger in the area, had them come down, and with ridiculous speed, cut down all the trees.

[00:30:24] Speaker 02:
And set in the response to our emergency motion, all the trees are cut.

[00:30:28] Speaker 02:
There's nothing to do here.

[00:30:29] Speaker 02:
So we absolutely did not give up our ability to try to save these species.

[00:30:38] Speaker 02:
And if GRT wanted to have certainty about what it needed to do to avoid the ESA, the solution was very simple.

[00:30:46] Speaker 02:
get an incidental take permit with Habitat Conservation Plan.

[00:30:50] Speaker 02:
That would have done it.

[00:30:51] Speaker 02:
If they had done that, there would have been zero claim under the Endangered Species Act.

[00:30:56] Speaker 02:
They decided not to do that.

[00:30:58] Speaker 02:
And when they did that, they did that at their jeopardy.

[00:31:00] Speaker 03:
Why didn't you file your suit months or years before you filed it?

[00:31:03] Speaker 02:
So, Your Honor, I think this is an important point relative to how the state court proceedings proceeded.

[00:31:11] Speaker 02:
The project evolved throughout that period.

[00:31:14] Speaker 02:
It changed.

[00:31:15] Speaker 03:
And in fact... But it still didn't occur to you that you could demand that they get an ITP?

[00:31:20] Speaker 02:
So at that point, and so our case that we filed said get an ITP, right?

[00:31:27] Speaker 02:
It said you are gonna commit take without an ITP and you need to go get one, right?

[00:31:33] Speaker 02:
That was our suit.

[00:31:34] Speaker 02:
Why didn't we bring it before?

[00:31:36] Speaker 02:
when the proceeding was going through the state court, it constantly was changing as the plaintiff in that proceeding prevailed.

[00:31:47] Speaker 03:
But it couldn't have come as a surprise to you what they were ultimately seeking, and it can't have come as a surprise to you that you could have asked that they get the ITP from federal regulators rather than state regulators.

[00:32:00] Speaker 03:
And when you don't do that until the end of the state case,

[00:32:03] Speaker 03:
It really looks like tag team, and that's what Judge Donato was really unhappy about.

[00:32:08] Speaker 03:
And it looks really unfair.

[00:32:11] Speaker 03:
And I'd like to speak to that, Your Honor.

[00:32:12] Speaker 03:
We have a very sophisticated client here.

[00:32:14] Speaker 03:
They're very, very experienced, and you have very good lawyers on your side.

[00:32:18] Speaker 02:
And with regards to the tag team question, right?

[00:32:20] Speaker 02:
One of the things that I'd point to is Taylor addressed this specifically and said, look, this concern, because that was exactly the concern raised in Taylor.

[00:32:30] Speaker 02:
They said, this is tag teaming.

[00:32:33] Speaker 02:
One person lost their FOIA case, and another one comes and brings the exact same FOIA case.

[00:32:39] Speaker 02:
And Taylor said, look.

[00:32:41] Speaker 02:
The due process concerns here are too important to have them be obviated by a concern of tag teaming, and that tag teaming would be addressed through stare decisis.

[00:32:52] Speaker 02:
And that's an important point here, because there is no stare decisis.

[00:32:56] Speaker 02:
No one has ever determined that there will not be take here, or there was not going to be take.

[00:33:02] Speaker 02:
That case has never been litigated.

[00:33:04] Speaker 02:
I'd also point, Your Honors, to the fact that

[00:33:07] Speaker 02:
When this litigation was filed, the first response from GRT was a motion to dismiss based on ripeness.

[00:33:16] Speaker 02:
They said your ESA section nine case is not right because we don't know what this logging is even gonna look like.

[00:33:26] Speaker 02:
And I'd also point, Your Honor, to the cases that we cite in our opening brief where you have ESA section nine cases that follow

[00:33:35] Speaker 02:
state court proceedings on exactly this issue, what is the project gonna look like, the environmental review, because those cases change what a project is.

[00:33:46] Speaker 02:
So it isn't a matter of strategy, it's a matter of practicality.

[00:33:53] Speaker 02:
You don't know what the project is actually gonna look like until the CEQA and the Forest Practices Act case is resolved.

[00:34:01] Speaker 02:
It is also a case in state court that is based solely on an administrative record, whereas an endangered species act section nine case is based on extrinsic evidence.

[00:34:11] Speaker 02:
So combining those together and having the court, the state court adjudicate, one, should this project be sent back to the agency to look at again and potentially changed, and at the same time,

[00:34:25] Speaker 02:
be adjudicating, not based on an administrative record, that extrinsic evidence that the project that is being sought to be changed could result in take, that as a practical matter would be untenable, which is why it never happens.

[00:34:41] Speaker 04:
Thank you, Council.

[00:34:42] Speaker 04:
Thank you, Your Honor.

[00:34:43] Speaker 04:
We appreciate the presentation.

[00:34:44] Speaker 04:
The matter of Friends of Gualala versus Gualala Redwood Timber is submitted.