[00:00:00] Speaker 00: May it please the court, Rebecca Garverman, for appellants. [00:00:03] Speaker 00: I'd like to reserve three minutes. [00:00:05] Speaker 00: I'll begin by addressing the three points requested by this court. [00:00:09] Speaker 00: First, my clients are willing to engage in mediation and have been willing to do so since we were contacted by this court's mediation program in May. [00:00:18] Speaker 00: We have conferred with Council for the Government, who has informed us that the Park Service is not willing to mediate our claims. [00:00:25] Speaker 00: Consequently, submission of this case should not be deferred. [00:00:29] Speaker 00: While we would have been willing to allow for the exhaustion of mediation, we do not believe that this court should defer in the absence of any mediation. [00:00:40] Speaker 00: The Park Service has continued to insist that their proposed revision of the General Management Plan via the Tamales Point Area Plan is purely discretionary. [00:00:50] Speaker 00: This effort could be delayed or abandoned at any time. [00:00:55] Speaker 00: This is why we have emphasized in our briefing that the case is not moot, as we need a declaratory judgment confirming that the Park Service has a mandatory duty to revise the general management plan, as well as a court order holding the Park Service to a schedule to do so. [00:01:12] Speaker 02: Well, here's my concern, and maybe it's an irrelevant concern. [00:01:17] Speaker 02: I want to ask the government about this, too. [00:01:19] Speaker 02: The case is not moot. [00:01:20] Speaker 02: I don't think anybody claims the case is moot. [00:01:24] Speaker 02: It normally takes us several months in difficult cases to come up with opinions. [00:01:29] Speaker 02: It may take us longer. [00:01:31] Speaker 02: And if the plan is revised in the meantime, it does become moot, correct? [00:01:35] Speaker 02: Revision is all you're seeking. [00:01:38] Speaker 02: You could later attack the substance of the revision, but right now your only claim is that they have to revise. [00:01:43] Speaker 00: Correct, Your Honor. [00:01:44] Speaker 00: However, we do not believe the case would be moot because voluntary cessation of unlawful action does not moot a case. [00:01:52] Speaker 02: That's where I have some difficulty. [00:01:53] Speaker 02: Let's assume that they revised it today. [00:01:57] Speaker 02: Again, put aside the substance of the revision. [00:02:02] Speaker 02: We're talking here about the point Reyes. [00:02:05] Speaker 02: We're not talking about their general practices around the country. [00:02:08] Speaker 02: We're talking about the Port Reyes general management plan. [00:02:13] Speaker 02: Can you really make a case that that's capable of repetition yet evading review? [00:02:19] Speaker 02: I mean, if they wait very long to revise it again, you'll come into us and you tell us and we deal with it. [00:02:26] Speaker 02: So one of my difficulties with the case, because you're not guaranteed a victory, is maybe you're better off with us waiting than us ruling. [00:02:35] Speaker 00: Well, Your Honor, if we come to you again, we are stuck with the district court ruling that there is no mandatory duty. [00:02:42] Speaker 00: So we couldn't come to you again in the future if there was another unreasonable delay. [00:02:47] Speaker 00: So I would say that this is capable of repetition. [00:02:50] Speaker 00: And the Park Service has repeatedly said that while they are going to revise the general management plan, they do not believe that it is anything other than a discretionary duty for them to do so. [00:03:02] Speaker 02: tell me why it's not just a discretionary duty. [00:03:08] Speaker 02: I think you need to deal with me with the, all the acronyms bother me, the ONRC case. [00:03:15] Speaker 00: Absolutely, Your Honor. [00:03:16] Speaker 00: So this case is governed, first of all, by Southern Utah Wilderness Association versus Norton, where the Supreme Court provided that a claim under 7061 can proceed only where a plaintiff asserts an agency failed to take a discrete agency action that it is required to take. [00:03:33] Speaker 00: And so here you have exactly that. [00:03:35] Speaker 00: 54 USC section 100502 directs that the general management plans for the preservation and use of each system unit shall be prepared and revised in a timely manner. [00:03:47] Speaker 03: How is revision a discrete action? [00:03:51] Speaker 03: I mean there could be an infinite or in some cases no revisions required under particular plans. [00:03:58] Speaker 00: Well, Your Honor, revision is a discrete action because it's just updating a single document. [00:04:03] Speaker 00: And I would also note that the government has actually conceded that the statute imposes a discrete duty to revise the plans. [00:04:10] Speaker 00: And so the only remaining question is whether the duty imposed is mandatory. [00:04:15] Speaker 02: Well, whether it's mandatory and both as to execution and as to time. [00:04:23] Speaker 00: Correct, Your Honor. [00:04:24] Speaker 02: So tell me why it's mandatory as to time. [00:04:27] Speaker 00: So, Your Honor, it's not that it has to be mandatory as to time, it's that it has to be mandatory as to whether the action must be done. [00:04:35] Speaker 00: And so here, it is very clear that the Park Service must revise the general management plan. [00:04:41] Speaker 00: You are correct, there is some initial discretion in the timing of when, but whether they must revise the plan is mandatory. [00:04:49] Speaker 00: There is no discretion there. [00:04:51] Speaker 00: And Your Honor had mentioned the ONRC case, [00:04:54] Speaker 00: The Park Service's position that the language in a timely manner somehow converts an otherwise mandatory duty to a discretionary one is just incorrect. [00:05:05] Speaker 00: The government relies heavily on ONRC, and that case does not apply here. [00:05:10] Speaker 00: The language in the statute at issue in ONRC directs the agency to revise land use plans when appropriate, and that is materially different from the statute here. [00:05:20] Speaker 02: Why is that materially different in a timely manner? [00:05:24] Speaker 02: When appropriate means at the time when it is appropriate to do so. [00:05:28] Speaker 02: In a timely manner means when it is timely to do so. [00:05:32] Speaker 02: Why are they so different? [00:05:33] Speaker 00: Your Honor, respectfully, I disagree. [00:05:36] Speaker 00: If the statute had said when timely, then perhaps these two statutes would have very similar language. [00:05:42] Speaker 00: It doesn't. [00:05:43] Speaker 00: The statute says revisions must be done in a timely manner. [00:05:47] Speaker 00: And as you correctly point out, when appropriate indicates there could be a time when it is never appropriate to revise. [00:05:55] Speaker 02: Well, couldn't it also indicate that when timely? [00:05:57] Speaker 00: but it is not when timely, it is in a timely manner. [00:06:01] Speaker 00: And that indicates that something must be done, but must be done in a timely manner. [00:06:06] Speaker 00: The government must revise the general management plan and when they do so is in a timely manner. [00:06:13] Speaker 00: It is a condition that reinforces the mandatory duty. [00:06:17] Speaker 00: So the mandatory duty exists and Congress also wanted the Park Service to do it without undue delay. [00:06:24] Speaker 00: And so they added the language in a timely manner. [00:06:26] Speaker 03: Did they revise it in 2021? [00:06:28] Speaker 00: No, Your Honor. [00:06:29] Speaker 00: They revised the general management plan only as it pertained to the rest of Point Reyes National Seashore. [00:06:35] Speaker 03: And where is that in the statute? [00:06:37] Speaker 03: I guess this is a problem for you, isn't it, that they have revised it. [00:06:42] Speaker 03: They just haven't revised the substantive part that you want to talk about, which does suggest that you're asking us to impose a substantive gloss over a procedural statute here. [00:06:53] Speaker 03: Why doesn't that revision count? [00:06:55] Speaker 00: because that revision specifically excluded Tamale's point. [00:07:01] Speaker 02: Could you have challenged that revision and said it's arbitrary and capricious because you didn't deal with another important part of the problem? [00:07:09] Speaker 02: Perhaps we could have, Your Honor. [00:07:13] Speaker 02: Judge Johnstone's question sort of leads me to whether or not what you're claiming today is not that they haven't revised the plan in a timely manner, but that the way they revised it in 2021 was insufficient to address the problem that you're now raising. [00:07:29] Speaker 02: And that seems to me to be an arbitrary and capricious attack rather than a timeliness attack. [00:07:36] Speaker 00: Well, Your Honor, it's not so much that they revised the plan in a way that we didn't like. [00:07:41] Speaker 00: It's that they didn't revise the plan at all as it pertains to the Tamales Point area. [00:07:46] Speaker 02: Isn't your point that they should have revised it in 2021 to deal with the very problem? [00:07:52] Speaker 02: When did you bring this lawsuit? [00:07:54] Speaker 00: Your Honor, I am not actually so sure about that. [00:07:58] Speaker 02: Nothing gets up here immediately. [00:08:02] Speaker 02: You could have said in this law, so wait a minute, when you revised it in 2021, you should have dealt with the whole problem, not just the cattle ranchers problem. [00:08:11] Speaker 00: We could have, Your Honor, and when we brought this lawsuit, we didn't intervene in the Resource Renewal Institute lawsuit because we were concerned about the elk. [00:08:20] Speaker 00: The elk at Tamale's Point have been suffering, they have died, they were unable to access food and water during droughts starting in 2013, and our plaintiffs were witnessing emaciated, suffering, dying elk as a result of the droughts. [00:08:35] Speaker 00: And our desire was to ensure that there was relief brought to those elk. [00:08:42] Speaker 00: And we believed that doing so would be best remedied by bringing a separate suit for emergency relief. [00:08:49] Speaker 00: And thus intervening in the ongoing resource renewal suit would not have addressed our immediate concerns and provided relief for the elk. [00:08:58] Speaker 02: Could you have filed a petition with the agency for revision of the [00:09:04] Speaker 00: as a petition for a writ of mandamus? [00:09:06] Speaker 02: No, a petition with the agency, an application to the agency to have it revise the plan. [00:09:12] Speaker 02: Your Honor, I'm... The reason I ask this is I'm looking at most of the cases you cite that deal with mandatory duty are 555 cases where somebody has gone to the agency and said, I'd like you to do something, and the agency says no, and then people come to us and say, [00:09:29] Speaker 02: They violated their duty under 555 to respond to the request. [00:09:36] Speaker 02: I'm trying to figure out whether there was another procedural mechanism for you to use here. [00:09:39] Speaker 00: It's possible, Your Honor, but there are two reasons why we wouldn't want to do that. [00:09:44] Speaker 00: One is that this is an unreasonable delay case. [00:09:47] Speaker 00: So by bringing a petition, that would just subject us to further delay. [00:09:51] Speaker 00: The elk would continue to suffer and die while the agency had time to decide on the petition, thereby just allowing more time to elapse before the wildlife got any relief. [00:10:01] Speaker 00: The second is that we just felt we didn't need to. [00:10:04] Speaker 00: There is a clear statutory duty under here, so we can bring a section 7061 APA claim and obtain relief under that unreasonable delay claim. [00:10:15] Speaker 00: And Your Honor, just to go back to ONRC, as I mentioned, when appropriate indicates the duty is obviously discretionary. [00:10:23] Speaker 00: In a timely manner means that Park Service must get this done. [00:10:28] Speaker 03: And the- Well, for whom? [00:10:30] Speaker 03: Because right after the language that we've been focused on, there is a timely, regular reporting requirement, but that's to Congress. [00:10:41] Speaker 03: So, why shouldn't we read this as an instruction to the agency to keep Congress up to date? [00:10:50] Speaker 03: Congress, through its oversight duties, might be better positioned to decide what is or isn't timely with regard to particular plans. [00:10:57] Speaker 00: Well, Your Honor, that's a separate duty. [00:10:59] Speaker 00: They do have to just update Congress on the status of general management plans and the status of their revisions. [00:11:05] Speaker 00: It's a separate duty to actually engage in the revision itself. [00:11:09] Speaker 00: And then that is what the Park Service has failed to do. [00:11:13] Speaker 00: And as to what is timely, the Park Service themselves have actually said what that means. [00:11:18] Speaker 00: And their policies, they have said that general management plans should be reviewed every 10 to 15 years, and that if substantial changes in conditions have occurred, the plans should be revised even sooner. [00:11:30] Speaker 03: And here we have- That policy, you believe that policy is enforceable here? [00:11:34] Speaker 00: I believe that policy is not binding. [00:11:36] Speaker 00: I believe that policy is very important for the court to take into account when determining what timely means, which really should be in the second prong. [00:11:44] Speaker 00: That should be the unreasonable delay analysis, not the mandatory duty. [00:11:48] Speaker 00: The mandatory duty exists, then the question about what is timely is governed by the track factors and is the unreasonable delay analysis. [00:11:55] Speaker 00: And here, in accordance with Southern Utah Wilderness Association, the manner of the agency's action is left to their discretion. [00:12:04] Speaker 00: But whether they must act is not a question of discretion. [00:12:08] Speaker 00: They must revise these plans. [00:12:10] Speaker 02: But you're arguing that the time at which they must act is not subject to discretion in this case either. [00:12:16] Speaker 00: The time initially, they have some discretion to determine the time. [00:12:20] Speaker 00: And when they unreasonably delay, as they have here for over 44 years, it then falls to a court to decide whether that delay is reasonable. [00:12:29] Speaker 00: And that is why we brought this case. [00:12:31] Speaker 00: And as Judge Armstrong of the Northern District of California correctly held in the resource renewal case, the Park Service has a mandatory statutory duty. [00:12:42] Speaker 00: Now the government has argued that a mandatory duty cannot be imposed by a statute absent a clear timeline. [00:12:48] Speaker 00: This is clearly wrong and not in accordance with this court's precedent. [00:12:52] Speaker 00: And we have also relied on section 555B of the APA, cases that invoke that. [00:12:57] Speaker 00: because that section says that agencies must proceed to conclude a matter presented to them. [00:13:03] Speaker 02: That's why I asked you about 555. [00:13:05] Speaker 02: It seems to me it's quite clear that if you go to an agency and say, please do something, and it doesn't respond in a, it has to respond under 555. [00:13:16] Speaker 02: in some way. [00:13:18] Speaker 02: You didn't do that here. [00:13:20] Speaker 02: You didn't petition the agency to do something. [00:13:22] Speaker 02: You came directly to us and said, you tell them to do something. [00:13:27] Speaker 02: Isn't that a difference between the 555 cases? [00:13:30] Speaker 00: I assume I'm running short, but I can just quickly answer your Honor's question. [00:13:33] Speaker 00: The difference is that section 555B, while a different procedural posture, that section imposes a mandatory duty. [00:13:41] Speaker 00: It says [00:13:42] Speaker 00: each agency shall proceed to conclude a matter presented to it within a reasonable time. [00:13:48] Speaker 00: And within a reasonable time is strikingly similar to in a timely manner. [00:13:52] Speaker 00: And so if 555B imposes a mandatory duty, then surely 54 USC 100502 does as well. [00:14:00] Speaker 00: If there are no further questions, I would like to reserve the remainder of my time. [00:14:04] Speaker 00: And if that is all right? [00:14:07] Speaker 03: Yes, yeah, we'll give you two minutes. [00:14:08] Speaker 00: Thank you so much, Your Honor. [00:14:09] Speaker 03: Thank you, Ms. [00:14:10] Speaker 03: Garverman. [00:14:14] Speaker 03: Mr. DeVito. [00:14:24] Speaker 04: Good morning, Your Honors. [00:14:25] Speaker 04: May it please the Court. [00:14:27] Speaker 04: David DeVito from the US Attorney's Office for the Northern District of California on behalf of the Appalachians. [00:14:33] Speaker 04: I'd like to begin by addressing the questions that the Court put out to the parties. [00:14:40] Speaker 04: And my colleague correctly noted that we [00:14:43] Speaker 04: The Park Service does not believe that a mediation would be a productive use of time and resources at this juncture as the Park Service moves forward with its planning efforts. [00:14:53] Speaker 02: What's your timeline? [00:14:56] Speaker 02: When will we see the revision? [00:14:59] Speaker 04: Your Honor, the revised plan will be finalized by the end of August. [00:15:07] Speaker 04: So in terms of timeline, the Park Service [00:15:12] Speaker 04: will issue the environmental assessment in May, and will finalize the revised plan in August. [00:15:19] Speaker 04: So turning into the court's question about an appropriate period for deferral, we do, recognizing the court's interest in judicial efficiency, think that a period of deferral would be appropriate, and we would propose that that period be [00:15:39] Speaker 04: sufficient to encompass the Park Service issuing the plan or approving the plan by the end of August? [00:15:48] Speaker 02: Yeah, I take it the reason that you don't think mediation would be useful is that you're doing a plan and that all the mediation would do is end up with you agreeing to do a plan. [00:16:00] Speaker 04: That's correct your honor we're we're very close to to finalizing the plan. [00:16:05] Speaker 04: We're now very far down the road of doing that, after having announced the intent to do it in December 2021. [00:16:14] Speaker 04: Several years later, we're on the cusp of finalizing the plan. [00:16:18] Speaker 04: So a mediation we just don't think would be productive in terms of what we would do. [00:16:24] Speaker 04: What we would do there would be agreeing to things that we're already doing and, in fact, almost completed. [00:16:32] Speaker 02: Turning to the merits, can you wait forever to revise a plan? [00:16:40] Speaker 04: The Park Service has an obligation to revise the plan. [00:16:43] Speaker 02: And is that judicially enforceable? [00:16:46] Speaker 04: No, it's not. [00:16:46] Speaker 02: So even though you have the obligation, let's assume you just said thanks, but no thanks. [00:16:54] Speaker 02: We're busy with other stuff. [00:16:56] Speaker 02: We're never going to revise this plan because we haven't been funded well enough for it because we care about other park plans more than this one or whatever. [00:17:06] Speaker 02: Park Service made that clear. [00:17:08] Speaker 02: We couldn't order it to revise the plan. [00:17:11] Speaker 04: Applying the court's analysis into the answer to that, Your Honor, is that no, because it's not that statute, the GMP statute, does not create an obligation that's enforceable under 7061. [00:17:24] Speaker 02: So why did Congress pass it at all then? [00:17:28] Speaker 04: Well, the origin of the statute, of course, [00:17:33] Speaker 04: obligated the Park Service to create general management plans in the first place. [00:17:36] Speaker 02: Right, but there's also a provision that says they shall be revised in a timely manner. [00:17:40] Speaker 02: You're effectively reading that out of the statute, aren't you? [00:17:44] Speaker 04: No, not at all, Your Honor. [00:17:45] Speaker 04: The Park Service absolutely has an obligation to revise the plans. [00:17:48] Speaker 02: Just not a judicially enforceable one. [00:17:50] Speaker 04: Correct. [00:17:51] Speaker 03: Well, why does it even have an obligation to prepare them? [00:17:54] Speaker 03: I mean, I don't read in a timely manner as necessarily modifying only revised. [00:17:59] Speaker 03: So prepare it in a timely manner. [00:18:00] Speaker 03: So they create the particular area governed by FLIPMA, and you sit on it before even preparing. [00:18:09] Speaker 03: Could you do that for 40 years? [00:18:12] Speaker 04: I don't think so, but in terms of looking to the courts, the analysis that the Supreme Court says is required under SUA, the issue is, is this a statute that creates an obligation about which the agency has no discretion whatever? [00:18:35] Speaker 04: And in order to get there, you have to eliminate [00:18:42] Speaker 04: the Park Service's discretion, and we think that the conferral of discretion in the statute is pretty clear. [00:18:48] Speaker 03: I think your friends on the other side would say, yeah, there's discretion. [00:18:52] Speaker 03: There's maybe 10 to 15 years of discretion. [00:18:54] Speaker 03: There's not 40. [00:18:56] Speaker 04: Well, the 10 to 15 years that they're coming up with is from the Park Service's own policy documents. [00:19:03] Speaker 04: And what those policy documents say is that the Park Service will review its plans [00:19:10] Speaker 04: in a 10 to 15 year time period. [00:19:13] Speaker 04: That's the suggested time period to determine whether they need to be revised. [00:19:19] Speaker 04: Review and revise are not equivalent. [00:19:22] Speaker 04: And so that assessment is a general policy guidance that the Park Service applies to itself, but just looking at that, it shows you the amount of discretion that the statute confers, right? [00:19:37] Speaker 04: And because it confers that discretion, [00:19:40] Speaker 04: It's outside the scope of 7061 under SUA. [00:19:42] Speaker 03: Has the department reviewed its, so it hasn't revised it, has the department reviewed the status of the elk for purposes of deciding at any earlier point whether it should revise the plan? [00:19:56] Speaker 04: Well, as we are here today, as your honors know, the Park Service has not only reviewed, but has made the determination that it is appropriate to [00:20:06] Speaker 04: revised the plan. [00:20:07] Speaker 03: And what was the precipitating factor there, this litigation? [00:20:11] Speaker 04: No, Your Honor. [00:20:12] Speaker 04: The, well, the precipitating factor was the historic droughts that occurred over the last decade, both in terms of severity and duration. [00:20:27] Speaker 04: And a host of other factors, of course, go into whether or [00:20:34] Speaker 04: a plan revision is appropriate in a given case based on the factors that are enumerated in the statute. [00:20:43] Speaker 04: Those things happen to coincide, but the Park Service's determination that it is appropriate to do that was driven by the impacts of those droughts on the resources in the park. [00:20:55] Speaker 02: Well, you do agree, don't you, that the statute provides a mandatory duty to revise the plan at some point? [00:21:05] Speaker 02: Let's assume that the in a timely manner was left off at the end and just said shall revise the plan. [00:21:14] Speaker 04: I still think that that's probably a discretion conferring statute under the circumstances. [00:21:19] Speaker 02: Looking at said revise the plan every five years. [00:21:22] Speaker 02: Would it be a mandatory duty? [00:21:24] Speaker 04: Uh, if it was mandatory, both as to whether and when, [00:21:28] Speaker 04: I think that's probably. [00:21:30] Speaker 02: Well, I tried to make it mandatory. [00:21:31] Speaker 04: Well, that's exactly what Sue says, right? [00:21:34] Speaker 02: If it says shall revise every five years, is it mandatory as to whether and when? [00:21:41] Speaker 04: I think so, yes. [00:21:42] Speaker 04: And I think that that's very much like. [00:21:45] Speaker 02: But you get to decide. [00:21:46] Speaker 02: But because the word timely is there rather than every five years, your view is that it's a discretion. [00:21:53] Speaker 02: It's thereby turned into a discretionary [00:21:58] Speaker 02: statute not a mandatory one. [00:21:59] Speaker 04: Absolutely, Your Honor. [00:22:00] Speaker 04: Considering the context and the purpose of this statute, which requires the revision of general management plans for all of the units in the Park Service, and there are hundreds, and it seems clear that Congress intentionally [00:22:18] Speaker 04: inserted that conferral of discretion to recognize. [00:22:21] Speaker 02: Well, I think Congress put that there because it wasn't going to impose on you a specific timeline. [00:22:25] Speaker 02: But your position seems to be that we don't even have to do it in a fashion that everybody in the world would agree was timely because you didn't tell us when. [00:22:38] Speaker 04: Well, that's sort of what SUA says, right? [00:22:42] Speaker 04: It says that unless the statute [00:22:46] Speaker 04: And we're here because, as Your Honor correctly pointed out, we're not in the situation where there was a petition for a rulemaking or something that a particular party came to the Park Service and asked. [00:23:00] Speaker 04: So that's why, under SUA, we have to look at the law that they're citing and determine whether that creates this mandatory nondiscretionary duty. [00:23:10] Speaker 02: Could they petition to have you revise the GMP? [00:23:15] Speaker 04: I don't know the answer to that, Your Honor. [00:23:18] Speaker 03: Well, why could they? [00:23:19] Speaker 03: Because I think according to your argument, within a reasonable time to proceed to conclude a matter, the petition would have to be to have you revise the plan in a timely manner, which I think your argument is that you couldn't. [00:23:33] Speaker 04: Well, my argument is that the decision about when to do that is intentionally discretionary with the Park Service and that the Park Service has [00:23:44] Speaker 04: the expertise to know when to do that. [00:23:46] Speaker 02: But assuming that such a petition would lie, you'd have to respond to that petition within a reasonable time. [00:23:53] Speaker 02: Sure, then we'd be in a different procedural posture. [00:23:55] Speaker 02: And if you didn't, our case law says that's an enforceable duty to make you do so in a reasonable time, even though the reasonable time language is not very specific. [00:24:07] Speaker 04: Correct, then you'd be under doing a different analysis under 555. [00:24:11] Speaker 02: Right, so now I'm channeling your friend here. [00:24:14] Speaker 02: She says, well, since you can enforce that in a reasonable time language in the statute, why can't we enforce that in a timely manner language in the statute? [00:24:26] Speaker 04: Well, precisely because they're different. [00:24:30] Speaker 04: And 555B is in the APA itself, and it's clear that [00:24:38] Speaker 04: under 555B, the purpose of that is to require agencies to take action on particular things that are presented to them. [00:24:48] Speaker 04: And if they fail to do that, then that claim gets channeled. [00:24:53] Speaker 04: It does get channeled through 706, but it doesn't go through the SUA analysis, because the SUA analysis is particular to where we are here, where we're talking about what is otherwise an allegation that an agency has just [00:25:08] Speaker 04: not complied with some law that otherwise directs it to do something. [00:25:13] Speaker 04: And so that SUA requires that as sort of a gatekeeping analysis. [00:25:19] Speaker 04: Is that law that anywhere in the United States code or in a regulation or wherever it happens to be found that someone's trying to enforce, does that impose [00:25:30] Speaker 04: a mandatory nondiscretionary duty. [00:25:32] Speaker 03: Setting aside the nondiscretionary duty, which of course would be the trigger for our action, what's the agency's position on what timely manner refers to? [00:25:41] Speaker 03: Timely with respect to the last revision, timely with respect to what's prepared, timely with respect to the policy circumstances over which the plan has coverage? [00:25:54] Speaker 03: What does timely manner? [00:25:55] Speaker 03: I mean, I assume you won't go into Congress. [00:25:58] Speaker 03: Your client doesn't go into Congress every year and say, well, timely manner. [00:26:01] Speaker 03: They have to report. [00:26:03] Speaker 03: So what does timely manner refer to? [00:26:04] Speaker 03: Timely with respect to what? [00:26:07] Speaker 04: Well, timely is what I think it was talking both about the initial general management plan and is also timely revision. [00:26:24] Speaker 04: Judge Hurwitz pointed out what timely talks about essentially means when appropriate. [00:26:36] Speaker 04: And that's the conferral of discretion that we're talking about here. [00:26:39] Speaker 03: Appropriate with respect to what? [00:26:41] Speaker 03: When the stars align? [00:26:43] Speaker 03: I mean, what? [00:26:45] Speaker 04: The criteria that are enumerated in the GMP statute. [00:26:48] Speaker 04: So talking about resource management, visitor capacity, [00:26:54] Speaker 04: things like that. [00:26:56] Speaker 03: So if each of the four categories, considerations under the statute, let's say each of them, let's just put them on a quantitative scale, they each changed by 10 orders of magnitude. [00:27:13] Speaker 03: So big changes, just going to see change with respect to the lands under the agency's management here. [00:27:24] Speaker 03: Does that change the timely manner analysis? [00:27:28] Speaker 04: Certainly the degree to which those factors change over time is something that influences the Park Service's decision as to whether a revised plan is appropriate. [00:27:42] Speaker 04: Absolutely. [00:27:43] Speaker 04: But it also captures why the discretion exists, right? [00:27:48] Speaker 04: Because you can easily envision a scenario where those factors don't change at all for decades. [00:27:56] Speaker 04: And the units that the Park Service manages range from Yellowstone to some, Rosie the Riveter. [00:28:05] Speaker 04: And you can, if you are looking at the, [00:28:09] Speaker 04: the factors that are enumerated in the GMP statute, you can easily imagine that those will be very different for all the different units within the park, and that's precisely why the Park Service has discretion to determine when. [00:28:23] Speaker 04: And so when the appellants say, well, the Park Service has to revise this regardless of whether it thinks it's appropriate to do so, we couldn't disagree more with that take on it, that the conferral of the discretion [00:28:37] Speaker 04: is there so that the Park Service is able to avoid judicial intervention in situations where the Park Service has no reason to believe it's appropriate to revise a plan and isn't just going through the... Well, you've now decided it is appropriate to revise it, correct? [00:28:58] Speaker 04: Correct, yes, we're on the Park Service. [00:29:00] Speaker 02: And what if their fear is that you might decide in July that it's not appropriate to revise it? [00:29:07] Speaker 02: Could we enforce this duty then? [00:29:10] Speaker 02: Were you once having decided it was appropriate to revise it? [00:29:13] Speaker 02: And then you've said, ah, the heck with it. [00:29:15] Speaker 02: We're not going to do it. [00:29:17] Speaker 02: Could we then enforce the duty? [00:29:19] Speaker 04: Well, no, because the SUA analysis doesn't look to whether the agency has thought it was appropriate to do something and then changed its mind. [00:29:31] Speaker 04: I mean, the SUA analysis looks at [00:29:35] Speaker 04: the law and whether it confers discretion, and if it confers the discretion, then it's not enforceable under 7061. [00:29:40] Speaker 04: I see that my time has expired, so thank you. [00:29:45] Speaker 04: Thank you, Mr. DeVito. [00:29:49] Speaker 03: Ms. [00:29:49] Speaker 03: Garrowman, we'll put two minutes on your clock and see how we do. [00:29:54] Speaker 00: Thank you, Your Honors. [00:29:57] Speaker 01: I understand your argument about they've got a duty to revise a general management plan in a reasonable time or time manner, but in what way? [00:30:05] Speaker 01: Do they have to take specific actions because they have a duty to revise it? [00:30:08] Speaker 01: What if you don't like the actions they take? [00:30:10] Speaker 00: If we don't like the actions they take, Your Honor, and we believe that they're unlawful, we can then bring an arbitrary and capricious claim. [00:30:17] Speaker 00: But right now, we are not claiming they must revise the plan in a particular manner. [00:30:20] Speaker 00: The manner in accordance with SUA, [00:30:22] Speaker 00: is left up to the agency's discretion. [00:30:25] Speaker 00: It is just whether they must revise the plan that is mandatory and not discretionary. [00:30:29] Speaker 01: So as counsel talked about, there are scenarios where things on the ground don't change much over time. [00:30:35] Speaker 01: And this is the case, I understand, talking about the droughts as being the precipitating factor, the droughts being the instigating factor. [00:30:43] Speaker 01: Is that it? [00:30:45] Speaker 00: Your honor, I believe that in any situation there would have to be some combination of changed conditions and time that has collapsed to determine in a timely manner and what that means. [00:30:55] Speaker 01: And here we have both of those things. [00:31:00] Speaker 01: larger elk population result of too much coddling, not natural, or is the smaller elk population, which one would be the default if the National Park Service wasn't on the ground, wasn't doing anything there? [00:31:18] Speaker 01: Because your argument is, well, the elk populations decline. [00:31:20] Speaker 01: Well, maybe it should if that's what the natural conditions would be. [00:31:24] Speaker 00: Well, Your Honor, we can't really stay because there aren't natural conditions. [00:31:28] Speaker 00: There's a miles-long, eight-foot-tall fence that prevents this herd from acting as though they are truly a wild herd. [00:31:36] Speaker 00: So in the wild, a herd would be able to migrate in times of drought. [00:31:40] Speaker 00: They'd be able to find new sources of food and water. [00:31:43] Speaker 00: And this herd is prevented from doing so. [00:31:45] Speaker 01: Does the fence completely surround them? [00:31:48] Speaker 00: Correct, Your Honor. [00:31:48] Speaker 00: It's a peninsula, so the fence prevents them from migrating at all. [00:31:52] Speaker 00: And I'd just briefly like to make two quick points. [00:31:55] Speaker 00: One, as Judge Hurwitz correctly pointed out, the agency can delay or abandon their efforts at any time. [00:32:01] Speaker 00: In fact, they have already flip-flopped in their announcement to the public as to whether or not their current efforts will actually revise the general management plan. [00:32:10] Speaker 00: And also, their park service policies say that they should amend a GMP when significant changes in conditions have occurred, which is precisely the point here. [00:32:21] Speaker 00: Their own website states current management guidance for Tamale's Point did not anticipate these drought conditions or consider climate change. [00:32:30] Speaker 00: So the general management plan as it pertains to Tamale's Point has not been revised since 1980 and has not taken into account drastically changed conditions that has led to the death of hundreds of elk. [00:32:42] Speaker 00: Respectfully, we would request that this court reverse the district court's erroneous ruling and remand for further proceedings. [00:32:49] Speaker 00: Thank you so much. [00:32:50] Speaker 03: Thank you, Ms. [00:32:50] Speaker 03: Garberman, and thank you to counsel on both sides for your arguments. [00:32:54] Speaker 03: This case will be submitted.