[00:00:00] Speaker 02: Thank you, Judge Friedland. [00:00:01] Speaker 02: May it please the Court, Andrew Burney on behalf of the United States. [00:00:04] Speaker 02: I'll keep an eye on my clock and try to reserve two minutes for rebuttal. [00:00:07] Speaker 02: This Court should reverse on all four of the issues presented in this interlocutory appeal. [00:00:12] Speaker 02: First and most fundamentally, the District Court erred in concluding that the 1900 Act categorically bars the United States from disposing of the lands under FLIPMA or otherwise. [00:00:21] Speaker 02: As a textual matter, the 1900 Act simply opened the lands to disposition under the broad categories of land disposal authority then in existence. [00:00:30] Speaker 02: FLIPMA then superseded and replaced that patchwork of laws with a uniform land disposition scheme that applies to all public lands, including, undisputably, the lands at issue here. [00:00:41] Speaker 02: Under the reference canon in common sense, FLIPMA thus serves as the modern version of the categories of authority identified in the 1900 Act. [00:00:49] Speaker 03: And I want to- So FLIPMA, though, says we're not doing implied repeals and actually lists a bunch of statutes that it does repeal, and this is not one of them. [00:00:57] Speaker 02: Right, so I don't think any of our arguments depend on implied appeal for two reasons. [00:01:01] Speaker 02: First of all, our argument is that, for two reasons, one argument we emphasize and the other argument Simplon emphasizes. [00:01:09] Speaker 02: I mean, for one, we think our argument is consistent with the 1900 Act under the reference canon, but also [00:01:15] Speaker 02: Even if the court were to find that the 1900 Act couldn't be applied here as a source of authority, there's no implied repeal necessary in interpreting FLIPMA as a subsequent statute as an independent source of authority, since it undisputedly applies to all public land. [00:01:31] Speaker 03: So why did FLIPMA list a whole bunch of statutes it was repealing that were about public land transfers then? [00:01:36] Speaker 02: Because I think it may have been necessary to repeal those statutes, but it's not necessary here because as an independent source of authority, it's not an implied repeal. [00:01:45] Speaker 02: And I think this court's decision [00:01:47] Speaker 02: in the Blackfeet Indian Tribe versus Montana Power Company in 1988 case is particularly instructive on this point. [00:01:56] Speaker 02: There you had a 1904 statute granting rights of way for a period not to exceed 20 years. [00:02:02] Speaker 02: And then you had a subsequent statute that granted allowed rights of ways for general purposes without any time limitation. [00:02:08] Speaker 02: And this court first said there was no implied repeal. [00:02:11] Speaker 02: But then it also said that there was no bar to interpreting both as independent source of authority. [00:02:18] Speaker 03: I mean, a corollary of- I think, if I'm remembering right, in that case there was a different whole method because the tribe had to approve it. [00:02:24] Speaker 03: And so it's like, one is a system where tribe approves and the other is some automatic system. [00:02:28] Speaker 03: And they're different. [00:02:29] Speaker 03: But here, there is no difference like that. [00:02:32] Speaker 02: I guess I thought the two statutes in that case both required tribal approval, but fair enough. [00:02:39] Speaker 02: But I think the more general point is that one of the corollaries of implied repeal doctrine in the reason why there's a presumption against implied repeals is we try to interpret statutes to coexist. [00:02:51] Speaker 02: And here it's perfectly possible to read the two as coexisting. [00:02:55] Speaker 02: They're different sources of authority. [00:02:57] Speaker 02: But I want to emphasize that our primary argument [00:03:00] Speaker 02: Um, as that doesn't depend on Flipma is just that this is, this is perfectly consistent with the 1900 Stach Act because, um, Flipma serves under the reference canon as the modern sources identified in the act. [00:03:12] Speaker 02: And one thing I want to emphasize, your honor, you do that textually. [00:03:14] Speaker 06: I don't know. [00:03:15] Speaker 06: I never understood that. [00:03:16] Speaker 06: So you're reading like timber, land, stone, and then that's Flipma? [00:03:22] Speaker 02: No, so it says homestead, townsite, stone and timber and mineral. [00:03:27] Speaker 02: I mean, Flipma expressly repeals the homestead and townsite actions to substitute for that. [00:03:33] Speaker 02: Flipma's definition of multiple use includes timber and minerals. [00:03:36] Speaker 02: It also repealed the Mining Act of 1872. [00:03:40] Speaker 02: FLIPMA is expressly designed as a substitute for this and other patchwork sets of laws. [00:03:45] Speaker 02: So it's designed as a substitute. [00:03:46] Speaker 02: And it's not just FLIPMA, Your Honor. [00:03:48] Speaker 02: I mean, I think this is the only interpretation that's consistent with the 1900 Act as well. [00:03:53] Speaker 02: It's undisputed. [00:03:55] Speaker 06: I mean, I think your first argument is much better. [00:03:57] Speaker 06: They're just simply two tracks of dispossessing land. [00:04:03] Speaker 06: dispossess it under the 1900 Act, or you could dispossess it under FLIP law. [00:04:06] Speaker 06: It's as simple as that. [00:04:08] Speaker 02: I mean, it's not that hard. [00:04:10] Speaker 02: So it sounds like, Your Honor, that you liked the argument that Simplot emphasized in their brief more than the argument we emphasized in our brief. [00:04:19] Speaker 02: I appreciate your candor. [00:04:20] Speaker 02: I mean, we don't have a problem with that. [00:04:22] Speaker 02: We advanced a somewhat more narrower argument based on the 1900 Act. [00:04:26] Speaker 02: But if pressed, I think we would agree. [00:04:27] Speaker 06: How is that a narrow argument? [00:04:29] Speaker 06: Because it requires you to make some [00:04:31] Speaker 06: linguistic gymnastics to get there. [00:04:34] Speaker 02: I mean, fair enough, Your Honor. [00:04:39] Speaker 02: I mean, I don't think we'd have a problem with a ruling based more generally on FLIPMA. [00:04:42] Speaker 02: I mean, FLIPMA does conclude an exception of the definition for public lands for lands that are held in trust for Indians, which is not the case here. [00:04:51] Speaker 02: So I don't think there would be, I don't think we would have a problem with a ruling based on FLIPMA. [00:04:56] Speaker 02: But we did have an argument based on the 1900 Act. [00:04:58] Speaker 03: I mean, I know this is sort of their argument. [00:05:00] Speaker 03: But what does only mean under that reading? [00:05:02] Speaker 02: I think there's no legislative history. [00:05:04] Speaker 02: I think only can plausibly mean two things, and they both point in basically the same direction. [00:05:08] Speaker 02: So I mean, for one, the argument is it modifies the United States, and it makes clear that federal law applies to this position. [00:05:16] Speaker 02: You're shaking your head, Judge. [00:05:17] Speaker 02: I didn't like that one either. [00:05:17] Speaker 02: OK. [00:05:18] Speaker 02: All right. [00:05:19] Speaker 02: Your body language wasn't good. [00:05:21] Speaker 02: But just to defend that a little bit, I think that arguably it wasn't needed. [00:05:27] Speaker 02: Actually, I think it's the same sentence right after that. [00:05:30] Speaker 02: It says, certain land is to be held in school districts according to the law of Idaho. [00:05:36] Speaker 02: But the other reason, which we didn't really brief, I think this story is pulled particularly well in the National Mining Association amicus brief, was that in the late 19th century and early 20th century, there [00:05:49] Speaker 02: all sorts of concerns about fraudulent, sort of non-statutory transfers that didn't follow federal law and didn't give settlers a chance to acquire the land. [00:05:58] Speaker 02: So maybe that was the purpose. [00:06:01] Speaker 03: If that was the purpose, I don't understand why I didn't say something more general, just like all federal land transfer laws or all valid laws. [00:06:09] Speaker 02: Fair enough. [00:06:10] Speaker 02: I mean, Congress could have done that. [00:06:13] Speaker 02: I mean, to be candid, I think the best evidence is that's what Congress intended. [00:06:17] Speaker 02: I know it's subsequent legislative history, which perhaps isn't of great value. [00:06:21] Speaker 02: But just three years later, when they repealed the public auction requirement, Congress in a 1903 House report described this 1900 statute as allowing for disposition under the general laws of the United States. [00:06:32] Speaker 02: I think that is what Congress intended. [00:06:34] Speaker 03: Congress just spelled out all... But why did they do that next amendment if this just was like you can do anything, any federal valid law? [00:06:45] Speaker 02: Well, I think the 1900 Act did apply a public auction requirement. [00:06:51] Speaker 02: So what I'm talking about is the 1904 Act that removed the public auction requirement. [00:06:54] Speaker 02: But my point is, in the legislative history of that act, in describing the 1900 Act, they described it as allowing for disposition under the general land laws of the United States. [00:07:05] Speaker 02: So my point is, I think the point is, by all indications, they listed it out. [00:07:10] Speaker 02: But by all indications, they listed it out. [00:07:12] Speaker 02: like all the major sources of land disposition, authority, than in existence. [00:07:16] Speaker 02: And I think whether, to Judge Boumete's point, whether you go as simple as- Is that even true? [00:07:21] Speaker 03: Weren't there also desert laws and other laws? [00:07:24] Speaker 03: I thought that isn't actually all of the kinds of laws that existed at the time. [00:07:28] Speaker 02: It might not be literally all of them, but I think it was the major sources of laws. [00:07:33] Speaker 02: And the indication just from that legislative history, at least, is that it was intended to be comprehensive. [00:07:37] Speaker 02: We certainly don't have any indication that Congress intended this to be limiting in any way. [00:07:43] Speaker 02: And just on the purpose of the 1900s. [00:07:45] Speaker 03: Well, except the word only. [00:07:46] Speaker 02: Right. [00:07:47] Speaker 02: And I've offered various reasons about it. [00:07:51] Speaker 02: And I think the federal law or the fraudulent transfers could be reasons. [00:07:56] Speaker 02: It's possible that only wasn't necessary and didn't do [00:07:58] Speaker 02: much work. [00:07:59] Speaker 06: But in any event, just to... Would you agree that only can't mean that future congresses can't create a separate system for dispossessing land? [00:08:07] Speaker 02: I'm sorry, could you repeat that, Judge? [00:08:08] Speaker 06: Only in the 1900 Act can't mean that future Congresses are precluded from creating different legislations, different tracks for... That's right. [00:08:15] Speaker 02: Not just as a matter of law, but as the Supreme Court is repeatedly clear in the Marcelo V. Bounds case in Dorsey that one Congress lacks the power to impose that sort of clear statement requirement on another Congress. [00:08:26] Speaker 03: But there is no... I mean, the question is whether [00:08:29] Speaker 03: If FLIPMA had listed this law with the list of laws it was repealing, then we wouldn't have this case, I think. [00:08:35] Speaker 02: The problem is they didn't. [00:08:38] Speaker 02: Right. [00:08:38] Speaker 02: And I think that the point is, Your Honor, we have been very clear in the district court and here that none of our arguments depend on implied repeal. [00:08:46] Speaker 02: We think this is consistent with the act. [00:08:48] Speaker 02: And we think that applying a subsequent source of more general authority that concededly applies to all public lands [00:08:54] Speaker 02: is perfectly consistent does not require an implied repeal. [00:08:58] Speaker 02: The 1900 Act is still in force until Section 4 of the Act, for example. [00:09:04] Speaker 02: They still had rights under that before the land was transferred out of the domain. [00:09:07] Speaker 02: Because none of our arguments argue that it's not in the books. [00:09:09] Speaker 02: It's just that this land exchange is consistent with that. [00:09:12] Speaker 02: And to the extent it's not, FLIPMA is an independent source of authority. [00:09:17] Speaker 03: The 1900 Act doesn't impose procedural requirements on future Congresses, right? [00:09:21] Speaker 03: There's no issue of it being invalid in some way under the cases that say you can't bind a future Congress to different ways of enacting statutes. [00:09:28] Speaker 02: No, no, no, I'm sorry. [00:09:29] Speaker 02: My point was, to the extent the 19th, and I think this goes more to the Flip My Independent source of authority, Your Honor. [00:09:35] Speaker 02: If to the extent the 1900 Act could be read as saying to apply new source of authority, Congress has to apply a clear statement. [00:09:43] Speaker 02: I don't think the 1900 Act says that. [00:09:45] Speaker 02: But to the extent it says that, my point, I thought I was trying to be responsive to Judge Boumete's question. [00:09:49] Speaker 02: One Congress can't impose that requirement on another. [00:09:52] Speaker 02: I do want to just make one. [00:09:54] Speaker 02: I know we're talking a lot about tax. [00:09:55] Speaker 06: Can I make one more sexual question? [00:09:58] Speaker 06: What does notwithstanding any other provision of law in flip mode do then? [00:10:03] Speaker 02: So that's in 1715A. [00:10:05] Speaker 02: I mean, I think it emphasized. [00:10:08] Speaker 02: So there's two things. [00:10:09] Speaker 02: In 1715A, it says notwithstanding any source of law. [00:10:11] Speaker 02: I think that means there is authority to do exchanges notwithstanding any source of law that would stand in the way. [00:10:17] Speaker 02: And I would also note. [00:10:18] Speaker 06: So that would suggest that they're creating independent tracks. [00:10:22] Speaker 02: Yes, I think that's right. [00:10:24] Speaker 02: And also 1716B, when it refers to land held by BLM, says dispose of lands under this act, which implies that it's an independent source of authority as well. [00:10:37] Speaker 03: I just don't understand. [00:10:38] Speaker 03: So it also says nothing in this act shall be deemed to repeal any existing law by implication. [00:10:44] Speaker 03: And then it lists the ones that it does repeal. [00:10:47] Speaker 03: And I don't understand where the space between that leaves, how saying those two things [00:10:52] Speaker 03: leaves the option that this law doesn't need to be repealed. [00:10:58] Speaker 03: The only in this other law doesn't need to be repealed for FLIPMA to affect it, because it has this thing, nothing shall be deemed to repeal existing law, and then it lists the ones it is repealing. [00:11:09] Speaker 02: The 1900, I mean, I'm not sure I can prove in my previous response. [00:11:13] Speaker 02: I mean, the 1900 Act has not, we don't believe it has been repealed. [00:11:16] Speaker 02: It is still in force. [00:11:18] Speaker 03: And so then you're saying that this transfer was either mining, stoning, which one is it? [00:11:24] Speaker 02: I don't think it was any of those. [00:11:26] Speaker 02: It was under a statute that serves as the successor to those broad categories of authority. [00:11:30] Speaker 02: Remember, Your Honor, when the 1900 Act was passed, I don't think land exchanges were even authorized under any statute. [00:11:37] Speaker 02: I could be wrong about that. [00:11:38] Speaker 02: But I think the Taylor Grazing Act in the 1930s was the first statute that authorized land exchanges. [00:11:45] Speaker 02: So it's not exactly the subject matter of those sources of authority. [00:11:49] Speaker 02: And again, this is the first argument, not the argument about FLIPMA as an independent source of authority. [00:11:54] Speaker 02: But it's the successor to these broad categories of law that FLIPMA, we think, in repealing and replacing them, was clearly designed as a replacement. [00:12:05] Speaker 02: I know I'm over my time. [00:12:06] Speaker 02: I do want to make one point. [00:12:08] Speaker 02: We are talking about text, and text is important as a good textualist. [00:12:12] Speaker 02: But I think the statutory purpose point is [00:12:14] Speaker 02: important to once really striking thing about this case. [00:12:18] Speaker 02: And I mean, I'm a little biased, obviously. [00:12:20] Speaker 02: But as I read the briefs, no one has articulated any plausible theory by which Congress would have intended in 1900 or 1976 to make these lands immune from disposition. [00:12:34] Speaker 02: Now, sometimes unintentional statutory black holes [00:12:38] Speaker 02: might be created if the court believed that FLIPMA and the 1900 Act unambiguously created that sort of situation. [00:12:44] Speaker 02: I suppose you'd be obligated to give effect to that. [00:12:46] Speaker 02: But this court should read statutes in a way that is coherent and doesn't create anomalies. [00:12:51] Speaker 02: And at the very least, I think, whether it's either argument or Simplot's argument that I've spent most of the time up here actually articulating, I think this exchange was authorized. [00:13:00] Speaker 02: I know there were other issues in the case, but I'm also way over my time. [00:13:03] Speaker 03: I think we better stop you. [00:13:04] Speaker 02: OK, all right. [00:13:04] Speaker 02: Thank you, Your Honor. [00:13:14] Speaker 01: Good morning, Your Honor. [00:13:16] Speaker 01: Miguel Estrada for Simplup. [00:13:18] Speaker 01: I would like to reserve two minutes for a bottle, if I may. [00:13:21] Speaker 01: Let me just jump in. [00:13:23] Speaker 01: We agree with the government that the order should be reversed in every respect. [00:13:29] Speaker 01: We think FLIPMA provides a fully independent ground [00:13:34] Speaker 01: of authority for the exchange. [00:13:37] Speaker 01: We think, as was explained earlier, that what Congress did in 1976 was to take stock of all of the existing laws after a careful study and provide a definition of public laws that is worthwhile to consider textually. [00:13:55] Speaker 01: It says any land or any land interest owned by the United States [00:14:02] Speaker 01: irrespective of how the United States acquired ownership. [00:14:08] Speaker 03: Given that, if that was enough, what was the point of listing a repeal of all of these laws, many, many, many, many laws listed specifically as having to be repealed? [00:14:17] Speaker 03: It seems like that would be unnecessary under your first argument. [00:14:20] Speaker 01: No, and respectfully, I think [00:14:24] Speaker 01: It is important to keep in mind how the Supreme Court deals with what falls in the category of an express repeal and a repeal by implication. [00:14:34] Speaker 01: A repeal by implication [00:14:36] Speaker 01: is things that are done almost by inadvertence when you cannot make things work together. [00:14:43] Speaker 01: And it is almost, can these two things essentially occupy the same space? [00:14:50] Speaker 01: Could Congress have intended this? [00:14:52] Speaker 01: That's the implication, by necessary implication. [00:14:55] Speaker 01: And you can go cases like Bashelder, which is one of the leading cases in the criminal law, for example. [00:15:01] Speaker 01: And oftentimes, the conclusion is that Congress did not intend that, that such repeals are disfavored. [00:15:08] Speaker 01: And all that 701F, I believe, in this statute does is to recite the background rule that would apply otherwise, that a repeal by implication is disfavored. [00:15:21] Speaker 05: Now, let us not [00:15:26] Speaker 01: forget that Congress repealed a lot of laws in FLIPMA expressly, including some of the laws in the 1900 Act. [00:15:36] Speaker 01: Now, what's going on here is really two things. [00:15:39] Speaker 01: And I think there are a couple of examples that have arisen in cases that we cite. [00:15:46] Speaker 03: I'm sorry. [00:15:46] Speaker 03: I don't understand your answer to my question. [00:15:49] Speaker 03: What you're saying, the very existence of FLIPMA and its statement that this is now taking over all land transfer [00:15:56] Speaker 03: is all we need. [00:15:57] Speaker 03: And if that's true, why is there a list of repealed statues? [00:16:00] Speaker 01: No, that's not what I'm saying. [00:16:01] Speaker 01: What I'm saying is that if you look at cases like Dorsey from the Supreme Court and Emirata Hess, what they tell you is that if the text applies, it is the express application of the text [00:16:14] Speaker 01: which if inconsistent with another law is an express application of the law. [00:16:20] Speaker 03: And I think you're saying that the general statement in FLIPMA that this is going to allow federal land transfer is enough. [00:16:28] Speaker 01: Yes. [00:16:28] Speaker 01: And if you believe that's inconsistent with only, [00:16:33] Speaker 01: We don't, but if you do, then that would be an express repeal of the exclusivity that was implied by only, not an implied repeal. [00:16:42] Speaker 01: That's my answer. [00:16:42] Speaker 03: But what I don't understand is, if that sentence in FLIPMA is actually enough to repeal other laws, why did they list a bunch of laws that were being repealed? [00:16:54] Speaker 03: It would seem to be totally superfluous. [00:16:56] Speaker 01: Well, I'm saying the opposite with all respect. [00:16:58] Speaker 01: Judge Freeland, I'm saying that the sentence recites the ordinary rule of interpretation, that they're not repealing anything by implication, and the things that they did repeal. [00:17:07] Speaker 03: No, that's not the sentence I'm asking. [00:17:08] Speaker 03: You started your argument, I thought, by saying, FLIPMA says that we are now going, this is, I'm sorry, I don't have the exact language. [00:17:15] Speaker 01: No, no, no, no, no. [00:17:16] Speaker 01: Now I understand what you're getting at. [00:17:18] Speaker 01: No, the sentence that I started with speaks to the scope of FLIPMA. [00:17:23] Speaker 01: Everything that FLIPMA covers, [00:17:25] Speaker 01: And that is what Flipma applies to. [00:17:29] Speaker 03: And isn't that what you're relying on to say? [00:17:31] Speaker 01: Yes, absolutely. [00:17:32] Speaker 03: OK, so that sentence, if that really is enough to tell us that Flipma now occupies the field of land transfer, why did they need to list a whole bunch of land transfer laws that were being repealed? [00:17:42] Speaker 03: Why weren't they automatically repealed by that sentence? [00:17:45] Speaker 01: Because the fact that the law applies doesn't mean that it displaces other laws that potentially also apply. [00:17:52] Speaker 01: And that is why the Blackfeet Tribe example is an important one. [00:17:56] Speaker 01: If you recall in that case, there was an original law that was enacted in 1904 that authorized the granting of rights of way for the purpose of building pipelines only in Indian land. [00:18:14] Speaker 01: Then in 1948, a broader law was passed that authorized the granting of rights of way for any purpose. [00:18:25] Speaker 03: But with a different approval mechanism. [00:18:28] Speaker 01: I think in both cases, you had to get the tribe to consent. [00:18:32] Speaker 01: But the catch was that the 1904 law [00:18:36] Speaker 01: you could read as limiting the right of way to 20 years, and the 1948 law to 50 years. [00:18:42] Speaker 01: Both remained under books, and both could apply independently. [00:18:47] Speaker 01: But both were independent sources of authority. [00:18:50] Speaker 01: And what we're saying here is that it's not unusual in the law for Congress to pass a narrow law and a broader, more comprehensive law, and for the government to have the choice, if both are equally available, [00:19:04] Speaker 01: to choose the broader, more comprehensive law. [00:19:07] Speaker 03: OK. [00:19:07] Speaker 03: So if that's true, and FLIPMA is the broader law, and it automatically is going to be in parallel with other laws, why is there a whole list of statutes that Congress bothered to repeal in FLIPMA? [00:19:17] Speaker 01: Because there are reasons to dispense completely with other statues by repealing because they're completely unnecessary. [00:19:25] Speaker 01: There are some statues that should not be repealed. [00:19:28] Speaker 01: For example, in this case, the tribes continue to enjoy hunting and fishing rights. [00:19:34] Speaker 01: If you repeal while the land is owned by the government, if you got rid of the statue, that presumably would go away. [00:19:45] Speaker 01: there are parts of the statute that, you know, remain sort of active, so to speak, and that grant rights. [00:19:55] Speaker 03: trigger the Indian canons of interpretation? [00:19:58] Speaker 01: Because Section 5 was not part of the 1898 agreement that was actually negotiated with the tribes. [00:20:07] Speaker 01: And the reason why the canon does not apply to it, apart from the fact that it was not negotiated for the benefit of the tribes, is that textually, its purpose is to open the land to settlement by non-native [00:20:21] Speaker 01: American citizens. [00:20:23] Speaker 01: And there are any number of cases, both from the Supreme Court and this court. [00:20:27] Speaker 01: The leading case from the Supreme Court, I believe, is the Oregon Fish and Wildlife case versus the Klamath tribe, where it says that many of these session laws that essentially were intended to open land to settlement, but also gave usufructory rights to tribes, are not solely for the benefit of Indian tribes. [00:20:49] Speaker 01: In addition, as the government pointed out in its brief, the mere fact that in the particular case, the plaintiff is a tribe and is arguing that the outcome in the case favors it doesn't mean that the interpretation of the law uniformly would favor it. [00:21:11] Speaker 06: That's my question. [00:21:12] Speaker 06: Is that the proper use of the Indian canon law? [00:21:14] Speaker 06: as I understood it, is that you use it if there's an ambiguity on a statute that might impact Indian lands that you consider in favor of it. [00:21:23] Speaker 06: I've never seen it used between two statutes to give way, thumb on the scale of one statute over the other. [00:21:29] Speaker 01: None of the prerequisites for the application of the canon are triggered here. [00:21:33] Speaker 01: There is no ambiguity. [00:21:35] Speaker 01: The statute was not passed for the benefit of a dependent Indian tribe, as the language used by the Supreme Court goes. [00:21:42] Speaker 01: And so there's nothing here that would trigger the application of the counter. [00:21:47] Speaker 06: But is it allowed to be used when you're comparing two different statutes? [00:21:52] Speaker 01: No. [00:21:52] Speaker 01: No. [00:21:53] Speaker 01: Usually it has to do with the interpretation of particularly ambiguous statutory language in a statute that you have identified as having passed for the benefit of a dependent tribe, and then in cases of ambiguity. [00:22:05] Speaker 03: But why wouldn't that then trigger by interpreting only here? [00:22:08] Speaker 03: It seems like there's ambiguity, according to the government, about what only meant. [00:22:11] Speaker 01: Right, though, as I pointed out to you, the particular provision in which only appears was a provision, the purpose of which was to open the land that was formerly owned by the Indian tribe to white settlement. [00:22:26] Speaker 03: But we started this whole conversation because you were saying the statute also keeps it for hunting. [00:22:31] Speaker 03: I mean, it does both. [00:22:33] Speaker 01: Oh, no. [00:22:35] Speaker 01: As I mentioned when I cited the Oregon Fish and Wildlife case, there are any number of statutes, both from the Supreme Court and from this court, that recite the proposition that statutes that provide benefits to Indians and non-Indians are not passed for the benefit of Indian tribes and therefore are not appropriate for the invocation of a canon. [00:23:02] Speaker 01: It has to be a statute that is passed for the benefit of the Indian-dependent tribe. [00:23:08] Speaker 01: And this, which was passed for the purpose of opening the land to settlements. [00:23:13] Speaker 03: And for keeping the land for the tribe in the meantime. [00:23:17] Speaker 01: But it is the dual purpose that defeats the application of the canon, because it has to be the single purpose of benefiting [00:23:23] Speaker 01: the Native American tribe that triggers the application of the camp. [00:23:28] Speaker 05: I have two questions that don't have anything to do with the statutory construction issue that the last 20 minutes have been set on. [00:23:33] Speaker 05: So they both have to do with compliance with FLIPMA. [00:23:36] Speaker 05: One has to do with valuation and one has to do with cultural significance. [00:23:40] Speaker 05: So on the valuation issue, I want to give you a hypothetical, which I don't really think is too far off. [00:23:46] Speaker 05: I want to take this out of gypsum stacks. [00:23:48] Speaker 05: Let's pretend I own a Walmart. [00:23:50] Speaker 05: and I want to expand my Walmart, and there's a parcel next to my Walmart that I really want. [00:23:55] Speaker 05: And everybody knows I really want it because I've been trying to buy it for years. [00:23:59] Speaker 05: But the owner won't sell it to me. [00:24:00] Speaker 05: Then the owner dies, somebody else inherits it, and they're willing to sell. [00:24:04] Speaker 05: And so somehow it goes up for auction. [00:24:07] Speaker 05: Isn't it a consideration, the matter of economics, [00:24:12] Speaker 05: in deciding the fair market value of that property that everybody knows that I really want it and that might bring in bidders who might want to bid up the price because they know that I'll pay a premium price to get it. [00:24:22] Speaker 05: That was something that wasn't considered, I don't think. [00:24:25] Speaker 05: What's wrong with that? [00:24:26] Speaker 01: What's wrong with it is that Congress passed a statute in 1988 that was an amendment to FLIPMA and was expressly for the purpose of facilitating exchanges of federal land and based on the problem that is often present in the West that you have a checkerboard type ownership and where Congress wanted to facilitate exchanges to consolidate land and make it more uniform and what the statute does [00:24:53] Speaker 01: is to have a statutory framework and calls for regulations as to how to conduct appraisals to deal with the value of lands to be exchanged by the federal government. [00:25:06] Speaker 01: And one of the things it does is that in the 1988 statute, which is now part of FLIPMA, is that the BLM [00:25:15] Speaker 01: has to take into account the regulations, under the regulations, something called the uniform appraisal standards. [00:25:24] Speaker 01: Right. [00:25:25] Speaker 01: And following the decisions of this court, which [00:25:30] Speaker 01: emphasize that there has to be a market demonstrated for the particular use that is intended. [00:25:38] Speaker 05: But I think, respectfully, I think you're confusing two different things. [00:25:42] Speaker 05: You have to consider the highest and best use, okay? [00:25:44] Speaker 05: You do. [00:25:45] Speaker 05: But you also have to consider what's the highest and best use worth, right? [00:25:48] Speaker 05: Those are not necessarily the same question. [00:25:50] Speaker 05: The highest and best use is the thing that it's going to be used for [00:25:53] Speaker 05: Then there's a second question, what's the value of it? [00:25:55] Speaker 05: And if somebody can come along and say, I know you really want it, so I'm going to buy it and bid up the price and make money off of arbitrage, isn't that part of fair market value? [00:26:08] Speaker 01: I'm not sure that I'm fully following your question because [00:26:12] Speaker 01: you would have to interact with the government, which is bound by the Uniform Appraisal Standard 410, which says that the intended use by the proposed acquirer cannot be considered, and I'm quoting, unless there is a competitive demand for that use in the private market. [00:26:29] Speaker 05: OK, so you're basically saying the question doesn't make sense. [00:26:31] Speaker 01: Well, no, I'm saying that- It's OK if you say that. [00:26:34] Speaker 01: No, I'm not. [00:26:35] Speaker 01: I am saying that the government in promulgating the Uniform Appraisal Standards [00:26:40] Speaker 01: has tried to cut off that type of speculation by saying that if the market is not existing already, it's not to be considered. [00:26:50] Speaker 01: I get your point. [00:26:50] Speaker 05: Let me ask my other question. [00:26:52] Speaker 05: The other question has to do with consideration of cultural significance. [00:26:56] Speaker 05: So as I understand it, there's the record of decision, or the RAD, or however it's known in the lingo. [00:27:01] Speaker 05: The record of decision does not itself talk about consideration of cultural significance. [00:27:05] Speaker 05: It says it doesn't incorporate by reference [00:27:09] Speaker 05: the environmental impact statement, which did. [00:27:11] Speaker 05: It says we're basing – this record of decision is based on consideration of the information [00:27:18] Speaker 05: from the final environmental impact statement, which to me doesn't sound like an incorporation by reference. [00:27:23] Speaker 05: It doesn't say we agree with it, just as we considered it. [00:27:26] Speaker 05: Why does that count as consideration of cultural significance? [00:27:29] Speaker 01: Let me say three things, starting with this court ruling in national parks, which pointed out that under the relevant statute, which I believe is 1716, [00:27:40] Speaker 01: What the court had to consider was the record as a whole and national parks. [00:27:46] Speaker 01: I believe it's a page 1069 says that that includes both the rod and the environmental impact statement. [00:27:52] Speaker 01: Now, if you look at the environmental impact statement, and I believe this is at four ER seven seventy three. [00:27:58] Speaker 01: there is a detailed consideration of how the government went about ensuring the preservation of those areas of culture. [00:28:08] Speaker 05: I agree that it's in the environmental interest. [00:28:10] Speaker 05: What you're telling me is that it doesn't also then have to be in the rod. [00:28:13] Speaker 01: Correct, because that is essentially the holding of what this court did in national parks. [00:28:20] Speaker 01: And in addition is the holding of the language of the statute and what the Supreme Court basically said in [00:28:27] Speaker 01: in the, you know, in court rulings from Vermont Yankee to the Perez case, which is that if you can figure out what the pattern of the decision was of the agency, that is enough to uphold it under Channery, which is, this is an administrative record case. [00:28:46] Speaker 03: How do we know that they considered it for the FLIPMA purpose? [00:28:50] Speaker 01: Right, and that's what gets us to the chain of reasoning. [00:28:56] Speaker 01: because if you follow the chain of reasoning is [00:28:59] Speaker 01: There was an initial proposal that was not adopted, and we ended up with proposal B. And one of the reasons for the adoption of the proposal was exactly this cultural reason. [00:29:11] Speaker 01: And it was that it preserved more culturally significant sites within federal ownership. [00:29:18] Speaker 01: There was one that was actually within the transfer land, but there were then these restrictions that were put in for this purpose. [00:29:28] Speaker 01: and you know the government also you know [00:29:32] Speaker 03: So wait, you're saying that's part of the FLIPMA record, is that the reason that B was chosen was because of cultural significance? [00:29:39] Speaker 01: Yes, it is part of the FLIPMA record because it is part of the record as a whole, as National Parks pointed out, and that's part of the EIS. [00:29:47] Speaker 01: And because National Parks made clear that in assessing the FLIPMA question, you have to consider both the EIS and the ROD, this is part of the FLIPMA record. [00:29:58] Speaker 01: And that is... [00:30:00] Speaker 03: Wasn't there an express incorporation there, though, that we don't really have as clearly here? [00:30:04] Speaker 01: No. [00:30:05] Speaker 01: In fact, I think part of what the court was dealing at page 1069 was that it had not been considered at all, because everybody had been under the apprehension that the record was simply the rod. [00:30:17] Speaker 01: And the EIAs, nobody had even looked at. [00:30:21] Speaker 01: And so part of what the court did at 1069 was to go out of its way to say, [00:30:26] Speaker 01: We're not even sure that we agree, were we the decision-maker, with this assessment, but it was all considered, if you consider the EIS and the ROT together as the record as a whole. [00:30:39] Speaker 01: That's how it ends up. [00:30:40] Speaker 06: Under ANIPA, we usually have a harmless error standard. [00:30:43] Speaker 06: Does that apply under FLIPMA as well? [00:30:46] Speaker 01: It applies to all these cases because that comes from the last sentence of the APA 706. [00:30:52] Speaker 01: And that last sentence says that in giving judgment, you have to disregard insubstantial errors. [00:31:00] Speaker 01: And so that would be true here, either under the Perez theory, that if you can ascertain what they were thinking, or because it didn't make any difference, you would have to conclude that the district court was wrong in essentially nitpicking this aspect of the analysis. [00:31:19] Speaker 01: Let me be clear. [00:31:21] Speaker 01: We think the BLM was very careful in analyzing this. [00:31:25] Speaker 01: And as the district court itself concluded, all of the other [00:31:29] Speaker 01: elements of the analysis the court concluded were considered. [00:31:36] Speaker 01: And given that the environmental impact statement makes clear that the agency went out of its way to minimize the cultural impacts by changing the boundaries and imposing deed restrictions. [00:31:50] Speaker 01: And that it otherwise concluded in Dorad that there were big benefits out of the length [00:31:56] Speaker 01: transaction. [00:31:57] Speaker 01: There was nothing essentially left to weigh in Hayek-Verba because it had minimized all of the adverse effects and it had concluded otherwise that there were significant benefits. [00:32:09] Speaker 01: So there was no point in writing that sentence out. [00:32:13] Speaker 03: Okay, we've taken you way over your time. [00:32:14] Speaker 03: Thank you, Your Honor. [00:32:16] Speaker 03: I don't think you can both have rebuttal at this point. [00:32:18] Speaker 03: You've gone way over your time. [00:32:19] Speaker 03: So someone will get three minutes and you guys can figure out who and we'll hear from the other side. [00:32:33] Speaker 04: Good morning. [00:32:34] Speaker 04: May it please the court. [00:32:36] Speaker 04: Monty Gray, Assistant General Counsel for the Shoshone-Banning Tribes. [00:32:40] Speaker 04: I also want to acknowledge the presence of our Chairman, Li-Wan Tendui, as well as our Councilman, Todd Appany, are here with us today. [00:32:50] Speaker 04: We are dividing up, of course, our time, 10 minutes and 10 minutes. [00:32:54] Speaker 04: Myself, I'll be addressing the 1900 Act as well as the interplay with FLIPMA as to the 1900 Act. [00:33:01] Speaker 04: All the other remaining issues of FLIPMA and any other issues are going to be handled by Ms. [00:33:09] Speaker 04: Grant. [00:33:11] Speaker 04: With the indulgence of the court, I'd like to give a little bit of historical background of the setting of kind of what [00:33:18] Speaker 04: led up to the 1898 agreement. [00:33:24] Speaker 04: And what we had is about 10 years prior, we had a prior agreement in which the United States was looking at trying to bring a railroad track through the reservation, which already existed. [00:33:37] Speaker 04: During that negotiation, most of the chiefs and the headmen of the tribes [00:33:45] Speaker 04: had expressed that they had no desire, and they did not want to sell any of their land. [00:33:50] Speaker 04: In response to those statements, the Indian agent expressed to him, and I just want to make sure I quote this correctly from the transcript, says, if you propose to do as you said, I will pledge you my word. [00:34:08] Speaker 04: You will see nothing but starvation before you. [00:34:14] Speaker 04: Then very shortly after that, they took a new poll of what all the chiefs and the headmen said. [00:34:19] Speaker 04: And they said that they're OK with giving a little bit of land. [00:34:23] Speaker 04: And then the rest of them just said the same sad all the way through. [00:34:28] Speaker 04: I use this as an example to help illustrate the importance of the trust responsibilities of the United States, as well as these canons of construction [00:34:40] Speaker 04: related to Indians, because we were not in an equal negotiating position in these situations. [00:34:47] Speaker 04: And that's why it's important that they exist, and that's why they're important that they're enforced in these settings that include this. [00:34:52] Speaker 04: Because what this agreement is in the 1900 Act is actually an amendment of our treaty. [00:34:58] Speaker 04: It is a portion where in the original treaty we had negotiated for a reservation that was much larger, $1.8 million. [00:35:07] Speaker 04: at the time period, approximately, is what it was supposed to be. [00:35:11] Speaker 04: And then through two different session agreements, they took away close to about two-thirds of that. [00:35:20] Speaker 04: And so the reason why you probably don't see this as a repeal is because it's a session agreement. [00:35:27] Speaker 04: It's us giving hundreds of thousands of acres, 416,000 approximately, to be correct, to the United States. [00:35:34] Speaker 04: If they repealed these session agreements, [00:35:37] Speaker 04: You're also repealing all likely their rights to the land that were associated with that. [00:35:42] Speaker 04: And so what we do have as just a background is that you do have a few amendments where they did amend some of the provisions. [00:35:51] Speaker 04: That's 1904. [00:35:52] Speaker 04: I disagree with their statement that it removed the auction provisions. [00:35:56] Speaker 04: What you actually see that it states is that it states that now that they've had the auction, those lands are still now subject to entry. [00:36:04] Speaker 04: and that they are still subject to the provisions of Section 5. [00:36:09] Speaker 04: It actually confirmed and reiterated that they still had to be subject to the provisions of Section 5. [00:36:15] Speaker 04: Then you have the 1926 Reversion, which actually directly referenced an Act of Revised Statutes 2455, which is a small, isolated lands tract act. [00:36:29] Speaker 04: That one was repealed. [00:36:32] Speaker 04: by Fletmond, and as I understand it, in 1932, they actually applied the Desert Lands Act of 1877, specifically referencing it by statute and name. [00:36:43] Speaker 04: And it is worth noting that the Desert Lands Act of 1877 is still valid effective law in existence today. [00:36:53] Speaker 04: It's not been rebuilt. [00:36:55] Speaker 04: You can find that at 43 USC 321 at Sequence. [00:37:00] Speaker 04: in addition to that. [00:37:01] Speaker 03: Do you agree with opposing counsel's description of when the canons are triggered? [00:37:07] Speaker 03: It seems like he's arguing that this law has a mixed purpose so the canons don't apply. [00:37:14] Speaker 04: I don't agree with their statement on that and part of it is actually tied to what I've noticed is their lack of acknowledging their trust responsibilities. [00:37:26] Speaker 04: In their briefs, they don't even reference or get into trust responsibility. [00:37:31] Speaker 03: But so are you saying that this law is fully for the purpose of the benefit of the tribe? [00:37:36] Speaker 03: Or are you saying it doesn't matter because the canons apply either way? [00:37:40] Speaker 04: Or both? [00:37:41] Speaker 04: Both. [00:37:42] Speaker 03: So what case do you have for the proposition that the canons apply to a mixed purpose law? [00:37:46] Speaker 04: Do you have a case? [00:37:47] Speaker 04: Just reference this court to actually the cases cited by the district court in their ruling. [00:37:53] Speaker 04: First of all, when they first let out the bat with was, [00:37:56] Speaker 04: trust responsibility and they noted underneath the Morongo ban versus FAA that recognizes trust responsibility when you have expressed provisions in the statute. [00:38:07] Speaker 04: The court then went on into page 10 of its decision in which it noted gross venture tribes where it indicated that this also includes compliance with the general regulations and statutes not specifically aimed at tribes. [00:38:24] Speaker 06: Is there any case that uses the canon across statutes, statutes that are enacted 100 years apart? [00:38:31] Speaker 04: I cannot tell you that it says across statutes. [00:38:35] Speaker 04: I can tell you that you have language that references that. [00:38:40] Speaker 06: But this would be a unique use of the canon. [00:38:43] Speaker 04: I don't believe so. [00:38:45] Speaker 04: Because what you have is you have a general law. [00:38:47] Speaker 06: Well, if it's not a unique canon, then you should be able to tell me where it's been used before this way. [00:38:51] Speaker 04: OK. [00:38:52] Speaker 04: So Tribes versus Bryant. [00:38:54] Speaker 04: I'm sorry, it's Bryant v. Atasca, which is 426 U.S. [00:38:59] Speaker 04: 373 on page 392, which is a 1976 Supreme Court case in which they indicate that statutes need to be – when they're construed, they need to be liberally construed in favor of the tribes. [00:39:16] Speaker 04: It didn't talk about – [00:39:18] Speaker 06: crossed 100 years of statutes, but it's referencing in general that... So this is a unique... I mean, you have to concede this is a unique use of that canon. [00:39:25] Speaker 04: I don't believe so. [00:39:26] Speaker 06: Well, if it's not unique, then you should be able to cite me a case that does it. [00:39:30] Speaker 04: Well, let me explain why. [00:39:33] Speaker 04: And the reason why is that almost all of these laws that they're relating to with these statutes and the interpretation of these statutes are relating to [00:39:43] Speaker 04: treaties and agreements with the Indian tribes that are more than 100 years old. [00:39:48] Speaker 04: And so maybe I come from a different point of view to where I'm all like, this isn't new. [00:39:52] Speaker 04: These are all relating principally to agreements and acts of Congress that were more than 100 years old. [00:40:01] Speaker 03: I thought your argument was that the canons apply to interpreting the 1900 Act and then [00:40:09] Speaker 03: The question is whether Flipma repealed it, but you have to figure out what it says in order to figure out whether there's a conflict, et cetera. [00:40:15] Speaker 03: But am I right that you're using the cannons to interpret the original act? [00:40:22] Speaker 04: The cannons are applicable to both acts, both the 1900 act and Flipma. [00:40:29] Speaker 06: So you could apply the Indian cannon to a law of general application. [00:40:36] Speaker 06: Because FLIPMA is a law of general application, you agree? [00:40:39] Speaker 04: It is a law of general application, and that's partly tied to the trust responsibilities of the United States. [00:40:45] Speaker 04: If you look at FLIPMA, FLIPMA references Indian tribes more than 250 times in the document. [00:40:53] Speaker 04: It is specifically acknowledging that it has a relationship with the tribes. [00:40:57] Speaker 04: It even allows for tribes to be involved in land use planning with them. [00:41:02] Speaker 06: Then what's the ambiguity in FIPMA then? [00:41:04] Speaker 06: So it says, notwithstanding any of the provision of law, then it allows the exchange of public lands without regard to how the United States acquired ownership. [00:41:13] Speaker 04: So it's actually our express position is that there is no ambiguity in either the 1900 Act or FIPMA. [00:41:20] Speaker 04: And that is simply because FLIPMA has in its savings clause in multiple provisions that are actually worth noting. [00:41:28] Speaker 04: I think the court highlighted and touched on in the notes under 1701, 701F, that there's no repeal by implication. [00:41:39] Speaker 04: Do you look at the other ones? [00:41:41] Speaker 04: 701A, which is land use rights are preserved. [00:41:45] Speaker 04: You have 701C, which talks about classifications and designations related to land that exist at the time of the act are preserved. [00:41:53] Speaker 04: And you have H, which says that all valid rights existing as to land are at all actions of the secretary or subject. [00:42:01] Speaker 05: What would have had to have been included in FLIPMA to make it clear that it applies to what we're talking about here? [00:42:08] Speaker 04: What would have had to have been included? [00:42:11] Speaker 04: I believe, very simply, every single one of those sessions, every single one of the sections that I just referenced, very much make it clear that the 1900 Act is still valid, because what you did have is this. [00:42:25] Speaker 05: And what if they put in, flipping to something that says this is a homestead law? [00:42:29] Speaker 04: If FLIPMA said that it – make sure I understand the question correctly. [00:42:32] Speaker 05: In other words, you know, you've got this only clause in the 1900 Act. [00:42:35] Speaker 05: It's only, you know, homestead, town site, stone and – or whatever it is, stone and timber, whatever. [00:42:41] Speaker 05: So what if FLIPMA had said this is a homestead law? [00:42:45] Speaker 05: Then would that end this case? [00:42:48] Speaker 04: If I said it was a homestead law and to be treated as a homestead law, I think that it would not end the case. [00:42:53] Speaker 04: And let me explain why. [00:42:56] Speaker 05: One, would it be able to – would it – If it's not, then there's no way Congress can get around the 1900 Act. [00:43:02] Speaker 04: Yeah. [00:43:02] Speaker 04: Well, no. [00:43:03] Speaker 04: Well, let me explain to folks – and I think I can help you understand our side on this one. [00:43:09] Speaker 04: What you have is that the – if it said it was a homestead provision, then yes, it would satisfy that requirement of the 1900 Act. [00:43:18] Speaker 04: Still remember, we have [00:43:20] Speaker 04: the requirement that the parcels cannot be any more than 160 acres. [00:43:23] Speaker 04: And this is 716. [00:43:25] Speaker 04: So clearly, it exceeds that. [00:43:27] Speaker 03: Can I just ask this question a different way? [00:43:29] Speaker 03: It has the list of laws it repealed. [00:43:32] Speaker 03: If it listed the 1900 Act, you'd be out of luck, right? [00:43:35] Speaker 03: Correct. [00:43:36] Speaker 03: So that, I think, is the answer. [00:43:37] Speaker 03: There's no bar on a future Congress repealing it. [00:43:39] Speaker 03: It just didn't, is your argument. [00:43:41] Speaker 04: Well, and let me add a qualifier to that. [00:43:44] Speaker 04: Is that correct? [00:43:46] Speaker 04: We would be out of luck in this situation, [00:43:49] Speaker 04: if they repeal the Session Act, plausibly you can argue that all the land reverts back to the tribes, because they then cancel it. [00:43:55] Speaker 06: So maybe that's a reason why they didn't include it. [00:44:00] Speaker 06: Why can't these two statutes just exist peacefully together? [00:44:03] Speaker 04: I think they can. [00:44:06] Speaker 04: I think the harmonization is obviously is that you take a reading of the more restrictive approach between the two. [00:44:13] Speaker 04: In other words, you have to comply with [00:44:16] Speaker 04: as the district court said down below, with FLIPMA. [00:44:19] Speaker 04: You also have to comply with the 1900 Act. [00:44:23] Speaker 06: No. [00:44:24] Speaker 06: Why can't you say you could either dispossess land under the 1900 Act, or you could dispossess land under the FLIPMA? [00:44:30] Speaker 04: Well, I think if you were to try to say that, you have to ignore the express wording or the plain text of the 1900 Act. [00:44:37] Speaker 06: No, you wouldn't. [00:44:38] Speaker 06: You would just say you're not dispossessing the land under the 1900 Act. [00:44:41] Speaker 06: You're saying that just doesn't apply. [00:44:43] Speaker 06: You're just saying, I'm going to dispossess the land under FLIPMA. [00:44:46] Speaker 04: And respectfully, I'll submit that when you have the word only at the end of the sentence – and what it is is that is only – and it's not about applying the prepositional phrase that's in front of it. [00:45:00] Speaker 04: That prepositional phrase that's under it, it says only under the homestead, townsite, stone, and timber and mining laws of the United States. [00:45:09] Speaker 04: Sure. [00:45:10] Speaker 06: But that's only if you're going to use the 1900 Act to just possess the land. [00:45:16] Speaker 04: And what you have is that law says that you can only dispose of that land according to those statutes. [00:45:24] Speaker 06: Yeah, under that statute. [00:45:25] Speaker 06: But if there's another statute that gives you full authorization to dispose of land, that's irrelevant. [00:45:31] Speaker 04: No, and I understand the court's question. [00:45:33] Speaker 04: I think what you have is when you have a specific law versus a general law, [00:45:38] Speaker 04: Generally the decisions to that extent usually find that the specific long point overrides the terms That's a plausible argument and what you have is is that those specific terms directly address the land in this section and Therefore those take precedent over the more general We've taken you over your time, so thank you. [00:45:59] Speaker 03: I think we better turn to your co-counsel. [00:46:01] Speaker 03: Thank you [00:46:12] Speaker 00: Good morning. [00:46:13] Speaker 00: May it please the court. [00:46:14] Speaker 00: My name is Jill Grant, and I'll be arguing the Flipma and NEPA claims in this case. [00:46:21] Speaker 00: Um, and just to set the stage, in this case, the BLM approved a land exchange where federal land right next to the tribes reservation and of great cultural significance to the tribes was traded for a piece of private land 16 miles away and across an interstate. [00:46:41] Speaker 00: So, [00:46:42] Speaker 00: I think it really cannot be argued that the exchange just kind of evened out. [00:46:49] Speaker 00: In fact, the EIS notes that the cultural significance of the land that the tribe is going to get instead is most likely not as significant to the tribes as the land that they had. [00:47:05] Speaker 00: In addition, the land that was exchanged and transferred to Simplot [00:47:10] Speaker 00: was worth millions more to SIMPLOT than the land that the federal government ended up with and therefore violated FLIPMA's equal value requirement. [00:47:22] Speaker 00: And starting with the equal value requirement, the federal government BLM was required to consider the proposed use or planned use in this case of the land [00:47:38] Speaker 00: And that is in this court's decisions in both desert citizens and national parks. [00:47:45] Speaker 00: That is definitely the most probable use of the land, which is what the FLIPMA regulations require. [00:47:53] Speaker 00: It also happens to be what the regulations in the UAS or the standards in the uniform appraisal. [00:48:00] Speaker 06: But it doesn't require the market value of the highest and best use. [00:48:04] Speaker 00: It requires the market value, which is defined as being the highest and best use, which in turn means the most probable legal use of the property. [00:48:20] Speaker 00: That's what the appraiser is supposed to consider under the flip regulation. [00:48:26] Speaker 06: But there has to be a market for that highest and best use, correct? [00:48:30] Speaker 00: there has been [00:48:51] Speaker 00: plenty of publicity about it. [00:48:53] Speaker 00: Everybody knows that that's what's going on. [00:48:55] Speaker 06: So people could just falsely drive up the cost. [00:48:59] Speaker 00: People can drive up the cost. [00:49:00] Speaker 00: But they would have to buy it. [00:49:03] Speaker 00: They can buy it for less and sell it for more, because they know Simplot wants it. [00:49:08] Speaker 06: But that's not... Even the trucks could buy it. [00:49:10] Speaker 06: Am I wrong? [00:49:11] Speaker 06: The way I look at it is... Are you familiar with eBay? [00:49:13] Speaker 06: Have you ever done an eBay auction? [00:49:15] Speaker 06: The way it works on eBay is that you could bid for an item, and if someone has a complete unique interest in the item, they could bid up to here. [00:49:30] Speaker 06: But the price they pay is actually the second highest bid, which is going to be down here. [00:49:34] Speaker 06: So that's the same thing in this market. [00:49:38] Speaker 06: If there's one buyer all the way up here, [00:49:40] Speaker 06: that has a unique interest. [00:49:41] Speaker 06: Everyone else is just down here paying the market value, which is basically agriculture for everyone else. [00:49:48] Speaker 00: But it isn't agriculture, because everybody knows what this land is going to be used for. [00:49:54] Speaker 00: And that is what the court tells. [00:49:56] Speaker 06: But that's not a real market. [00:49:57] Speaker 06: That's just like driving up a fake auction. [00:50:04] Speaker 00: I don't think it's driving up a fake option. [00:50:05] Speaker 06: Because someone would have to pay the price that Simplot's going to pay in order to just maybe $1 less to get that value. [00:50:13] Speaker 06: No one's going to do that. [00:50:16] Speaker 00: Why would nobody? [00:50:17] Speaker 00: I mean, you don't need to get the full value that Simplot would pay, but you would still hike the value up enough that it would be a lot more than agricultural land. [00:50:27] Speaker 06: It just seems economically illiterate to me. [00:50:29] Speaker 00: I don't know if this doesn't sound right. [00:50:30] Speaker 00: For that matter, Simplot's competitors could have, I mean, there are other phosphate companies in the region. [00:50:37] Speaker 00: FMC, which is right next door, could perhaps have used the land. [00:50:40] Speaker 06: So they would buy the land in order to harm their competitor? [00:50:43] Speaker 00: I may not, it's possible. [00:50:44] Speaker 00: I'm not an economist. [00:50:46] Speaker 00: Yeah, I just don't think this is right. [00:50:48] Speaker 06: It's not how markets work. [00:50:51] Speaker 00: I think that the value that even in individual places on the land does affect the cost [00:50:59] Speaker 00: of that piece of land. [00:51:02] Speaker 00: And that is what both the court below and this court in Desert Citizens and National Parks found. [00:51:11] Speaker 00: And even though in those cases the court mentioned that they were both landfill cases and the court mentioned there were other landfills in the region or there were other landfill proposals, that's not the basis for their decision. [00:51:29] Speaker 00: They only looked at that, the Desert Citizens case looked at that just to make clear that having a landfill was a viable or feasible option and similarly. [00:51:43] Speaker 06: But in that case, there was a market, right? [00:51:45] Speaker 06: There was more than one buyer. [00:51:47] Speaker 00: No, there wasn't because. [00:51:48] Speaker 06: Well, the case itself said there was a market. [00:51:51] Speaker 00: There was a market in the region the same way here. [00:51:54] Speaker 00: There's other phosphate companies in the region. [00:51:57] Speaker 00: But the piece of land that. [00:51:58] Speaker 06: No one's been identified as a competitor to Simplot here. [00:52:01] Speaker 00: The piece of land at issue. [00:52:02] Speaker 06: Because isn't it required to be adjacent to whatever? [00:52:06] Speaker 06: I forget that thing that's holding all the gypsum, whatever. [00:52:11] Speaker 00: The gypsum. [00:52:12] Speaker 00: The piece of land at issue in Desert Citizens was almost completely surrounded by the mining company's land. [00:52:20] Speaker 00: So nobody else could use it. [00:52:22] Speaker 06: It's a landfill. [00:52:22] Speaker 06: They were going to use it in that case, right? [00:52:24] Speaker 00: Nobody could get to it because it was surrounded. [00:52:26] Speaker 00: So there were not direct competitors in the case. [00:52:29] Speaker 06: Our opinion said there was a market for it. [00:52:31] Speaker 00: You might disagree with that. [00:52:32] Speaker 00: It said that there were other landfills in the region. [00:52:38] Speaker 00: There are other phosphate facilities in the region. [00:52:40] Speaker 00: There's a big Bayer phosphate facility in Soda Springs, Idaho. [00:52:45] Speaker 00: There was this former [00:52:47] Speaker 00: FMC plant there there are they could possibly use the gypsum in from that that place and transport it to this location even if it's not used for a gyp stack it could certainly be used as some type of industrial waste facility which is what a gyp stack is it's industrial waste there are other industrial waste facilities in the region I want to make sure you have time to get to the the question about the incorporation so can you speak to this issue that they are arguing that the [00:53:16] Speaker 03: that the FLIPMA analysis incorporated the NEPA analysis? [00:53:21] Speaker 00: Oh, NEPA and FLIPMA are entirely different. [00:53:24] Speaker 00: NEPA is simply analyzing various alternatives to a project in order to determine, looking at the environmental and other impacts from the different alternatives and then deciding which of those alternatives is the best in terms of having the least [00:53:44] Speaker 00: impacts or adverse impacts. [00:53:47] Speaker 00: That is not the same as making a public interest determination as to whether a land exchange should go forward. [00:53:55] Speaker 00: That's a totally different consideration, and that's what FLIPMA requires. [00:54:02] Speaker 00: And the case that was cited as saying that it was the national parks where it was said that the court looked at both the Rod and the EIS. [00:54:15] Speaker 00: the court was reviewing an appeals board decision, not a rod. [00:54:21] Speaker 00: And the appeals board looked at both the rod and the EIS, and therefore the court of appeals looked at both the rod and the EIS. [00:54:30] Speaker 00: It did not say that the EIS could just be incorporated, and that also would go against APA standards for needing to have a reasoned decision and an explanation of what the decision is. [00:54:45] Speaker 03: And so I think, so your argument is this is an error because it's a different inquiry that didn't happen. [00:54:50] Speaker 03: And what is your response to Judge Bumate's question about whether harmless error applies? [00:54:56] Speaker 00: I don't think it was harmless error because cultural resources, first of all, the interests of the local people are listed in both the statute and its regulations. [00:55:07] Speaker 00: And the regulations specifically say that cultural resources must be considered. [00:55:13] Speaker 00: And there is case law including the Hodel case that was cited in the context of the 1900 Act that says that all of the factors listed must be considered. [00:55:28] Speaker 06: What's the difference between the cultural consideration between NEPA and FUTMA? [00:55:35] Speaker 00: The analysis of the cultural resources in the EIS was thorough. [00:55:42] Speaker 00: And it was thorough. [00:55:44] Speaker 00: I don't think there's any argument that the analysis. [00:55:48] Speaker 06: So then how are we not harmless error? [00:55:50] Speaker 00: It's not harmless because BLM didn't even consider it when it made its, it had to do a weighing as to what the impacts that [00:56:00] Speaker 00: the different factors in FLIPMA and the regulations have. [00:56:04] Speaker 06: But if the EIS was thorough, didn't it do that wing? [00:56:07] Speaker 00: No, it never looked at cultural resources. [00:56:09] Speaker 00: It lists the 13 factors that it looked at in the ROD, and none of them are the tribe's cultural resources. [00:56:17] Speaker 00: That's the FLIPMA thing. [00:56:18] Speaker 03: But I think Judge Bumente is saying if they did look at it, if the same government looked at it, [00:56:23] Speaker 03: for purposes of NEPA. [00:56:25] Speaker 03: Why doesn't that show that if we remand it, it would be futile because they would just do the same thing they did with NEPA for FLIPMA? [00:56:31] Speaker 00: Because the EIS says that the land that the tribes are currently getting most likely does not contain the same value to the tribes as the lands that they're being forced to [00:56:50] Speaker 00: give up. [00:56:50] Speaker 03: And so your argument is that that is more important under FLIPMA than under NEPA? [00:56:56] Speaker 00: Well, NEPA didn't make a decision as to whether the land exchange should go forward. [00:57:01] Speaker 00: It just explained what the impacts were. [00:57:04] Speaker 00: And NEPA found... Because NEPA isn't really an approval. [00:57:06] Speaker 03: It's just a procedural step. [00:57:08] Speaker 00: Exactly. [00:57:10] Speaker 00: But FLIPMA is the... FLIPMA is supposed to be making a public interest determination, which it did not do. [00:57:16] Speaker 00: was not listed in the factors it considered and who knows perhaps if they had considered that, if that had weighed into their decision, it could have changed the decision. [00:57:27] Speaker 03: And if we were to agree with you about this argument, would the whole exchange be voided or would we just have like a partial remand to the agency to first look at this? [00:57:36] Speaker 03: What do we do if we agree with you about this question? [00:57:39] Speaker 00: I think that the [00:57:45] Speaker 00: Well, I should start by saying that the normal remedy for violations of the APA, which this is because there was no recent decision making, is vacator. [00:57:57] Speaker 00: But we haven't briefed the remedy yet before the district court. [00:58:01] Speaker 00: That is the piece that was left before this interlocutory appeal was taken. [00:58:08] Speaker 00: We would argue for a vacator. [00:58:09] Speaker 00: The test is in allied signal. [00:58:15] Speaker 00: We find not just that decision, but the equal value decision are serious flaws that cannot be remedied and therefore vacators appropriate. [00:58:27] Speaker 06: Am I correct the land has been transferred already? [00:58:30] Speaker 00: The land has been transferred, but that does not moot the case, the Muckleshoot Court. [00:58:35] Speaker 06: No, I'm not suggesting it's moot. [00:58:37] Speaker 06: I'm just wondering what the impact of the vacator would be. [00:58:42] Speaker 00: Yes, the land exchange would be undone. [00:58:45] Speaker 06: Oh, you would undo it? [00:58:46] Speaker 00: Yeah, which has happened before, including in the Muckleshoot case. [00:58:55] Speaker 03: Thank you. [00:58:55] Speaker 03: Thank you. [00:58:56] Speaker 03: So we'll give three minutes for rebuttal to whoever wants to use it. [00:59:00] Speaker 02: All right. [00:59:01] Speaker 02: Thank you, Your Honor. [00:59:01] Speaker 02: I have a lot to cover. [00:59:02] Speaker 02: So let me start with cultural resources. [00:59:04] Speaker 02: First of all, just as a technical matter, the ROD does discuss cultural resources at ER 126. [00:59:10] Speaker 02: It specifically discusses, right before the public interest determination, how the preferred alternative in the EIS was structured to minimize cultural resources. [00:59:17] Speaker 02: And then it made the precise public interest determination demanded by the regulation. [00:59:22] Speaker 02: But as for whether the EIS could be considered, Judge Kennelly, on the incorporation by reference point, we think it was incorporated by reference. [00:59:29] Speaker 02: I take your point that based on, in certain contexts, can mean something somewhat different. [00:59:34] Speaker 02: Think of the much abused phrase, based on a true story, for example. [00:59:38] Speaker 02: But in this context, where you have two agency documents, the point of the rod is to approve the preferred alternative set forth in the EIS. [00:59:47] Speaker 02: I don't think there's any question that they agree with it, and that was what that language is intended to do. [00:59:52] Speaker 02: It was harmless error, even if it wasn't. [00:59:54] Speaker 02: But in any event, I would urge the court not to impose that sort of magic words requirement on, and we think that was fish, on the Indian canon. [01:00:02] Speaker 02: We don't think the Indian canon applies here. [01:00:04] Speaker 02: Because among other reasons, this statute was not intended to benefit the Indians. [01:00:08] Speaker 02: I think that in Indian tribe, that's true of Section 5 in particular. [01:00:11] Speaker 02: But it's also true. [01:00:12] Speaker 03: So the tribe is citing cases that just say statutes have to be interpreted for the benefit of Indians, regardless of whether it was only for that purpose. [01:00:18] Speaker 03: So I think they do have cases that say that. [01:00:21] Speaker 02: I think this court expressly rejected that proposition in the Hoonah Indian Association v. Morrison case that we cite in our brief. [01:00:27] Speaker 02: It has to be passed for the benefit of Indians. [01:00:29] Speaker 02: Section 5, in our view, clearly was not. [01:00:32] Speaker 02: And even the provision. [01:00:33] Speaker 02: that gave them conditional rights as long as we're in the public domain. [01:00:37] Speaker 02: There's no dispute that the 1900 Act was intended to dispose of lands according to broad categories of land. [01:00:43] Speaker 02: So there's been no broken promise or breach in trust. [01:00:46] Speaker 02: They got precisely what they negotiated for, which was fixed sums in exchange for Interior's right to acquire and then dispose of this land. [01:00:55] Speaker 02: Judge Freeland, I want to take one more [01:00:57] Speaker 02: One more run at you on the implied repeal point. [01:01:00] Speaker 02: I mean, the question is not whether FLIPMA impliedly repeals the 1900 Act, which it doesn't. [01:01:04] Speaker 02: The question is whether FLIPMA can be applied. [01:01:08] Speaker 02: So in terms of what other points that are impliedly repealed, you have the Homestead and Townside Acts that are impliedly repealed, because to leave those in existence could undermine the uniform scheme FLIPMA sets up, for example. [01:01:23] Speaker 02: By contrast, there's no reason the 1900 Act and FLIPMA can't be operated together. [01:01:30] Speaker 02: They're simply different sources of authority. [01:01:32] Speaker 02: Finally, just on the vacator point, I just want to make clear that the vacator question in this case is complicated. [01:01:37] Speaker 02: I think that question is not before this court. [01:01:41] Speaker 02: I think the harmless error question probably is, because that's sort of baked into section 706 as to whether there has sort of been an error in the first place. [01:01:48] Speaker 02: But I certainly think, particularly as to the cultural resources under the usual allied signal factors, I don't think there's any chance that that would warrant vacature. [01:01:56] Speaker 02: But in any event, I don't think the remedy issues are before this court. [01:01:59] Speaker 06: Just one question. [01:02:00] Speaker 06: Just one question I have. [01:02:01] Speaker 06: Do you have a response to your colleague's argument, well, you know, FLIPMA is a general statute, but the 1900 Act is a specific one, and there is a canon where, you know, the specific topic conflicts with the general, we go with the specific. [01:02:15] Speaker 02: Yeah, so I have two responses to that. [01:02:16] Speaker 02: First of all, the specific governance governs the general canon. [01:02:19] Speaker 02: I think it's usually applied in the case where there's a conflict and two statutes can't coexist. [01:02:23] Speaker 02: I mean, here, these two statutes can coexist. [01:02:26] Speaker 02: But I also dispute the premise. [01:02:28] Speaker 02: I don't think there's any way. [01:02:30] Speaker 02: Yes, the 1900 Act is specific to these lands, but one isn't more specific than the other more generally. [01:02:37] Speaker 02: The entire point of it was intended to apply uniform scheme. [01:02:42] Speaker 02: And there's no question that the definition of public lands, which applies regardless of how BLM acquired ownership and contains two exceptions, neither of which apply here, [01:02:52] Speaker 02: So we think that these two can be applied in harmony, and that's what the court should do in this case. [01:03:01] Speaker 02: Over my time, I could say something on valuation, but I've already tested the court's patience, so I defer to you all on that. [01:03:10] Speaker 03: I think, unless you have more questions on valuation. [01:03:11] Speaker 02: Thank you. [01:03:12] Speaker 02: Thank you, Your Honor. [01:03:12] Speaker 03: Thank you both sides for the very helpful arguments. [01:03:14] Speaker 03: This case is submitted, and we're adjourned for the day.