[00:00:02] Speaker 03:
All right, thank you, counsel, for your patience.

[00:00:05] Speaker 03:
We will all make an effort to try to talk louder.

[00:00:09] Speaker 03:
You're fine.

[00:00:09] Speaker 03:
OK.

[00:00:10] Speaker 03:
So whenever you're ready, counsel.

[00:00:12] Speaker 02:
Thank you.

[00:00:14] Speaker 02:
Adam Flake for the United States and I would like to reserve five minutes for rebuttal and I will keep an eye on my time.

[00:00:20] Speaker 02:
A delegation of authority from Congress to the executive is permissible if it lays down by legislative act an intelligible principle to which the person or body authorized to exercise that authority is directed to conform.

[00:00:35] Speaker 02:
Here, Congress gave the agency the power to issue regulations necessary to implement the provisions of the Act, speaking of the FLIPMA, with respect to the management, use, and protection of public lands, and ordered the agency to manage the public lands under principles of multiple use and sustained yield.

[00:00:55] Speaker 02:
And that is sufficient under Mistretta, which I just quoted, and a very long line of cases stretching back a century that we discuss extensively in our briefs.

[00:01:13] Speaker 02:
The district court here erred in finding that the language of the statute was insufficient to cabin the authority of the Secretary of the Interior and her delegate, the Bureau of Land Management.

[00:01:36] Speaker 04:
So one of the arguments on the other side is that something more than the ordinary intelligible principle test applies because this is a criminal case.

[00:01:49] Speaker 04:
Oh, one of the arguments on the other side is that something more than ordinary intelligible principle, the ordinary intelligible principle test applies because of the criminal context of this.

[00:02:01] Speaker 04:
And in 2B, the Supreme Court said they hadn't really resolved that question.

[00:02:09] Speaker 04:
So maybe that's an open question.

[00:02:12] Speaker 04:
Can you address that?

[00:02:14] Speaker 02:
Certainly, Your Honor.

[00:02:17] Speaker 02:
First of all, it is an open question, but I don't think that this case is an appropriate vehicle to address that, for the simple fact that the Supreme Court has stated that it is open, and it gave some language about meaningfully constrained.

[00:02:37] Speaker 02:
But the Supreme Court hasn't

[00:02:40] Speaker 02:
really ruled on that issue, and it certainly hasn't actually said what extra the statute needs to show in the criminal context.

[00:02:47] Speaker 02:
And many, many cases have said that

[00:02:52] Speaker 02:
that's not the case.

[00:02:52] Speaker 02:
It's not the case.

[00:02:53] Speaker 02:
Hypothetically speaking, if there were such an additional requirement, this this particular whatever statute they're construing would meet that requirement.

[00:03:01] Speaker 02:
But no no case ever has held that that extra is required and do you think it's an open question in

[00:03:21] Speaker 02:
there's an unpublished case from 2022 called the United States versus Mota Medi.

[00:03:27] Speaker 02:
And it says that it was an open question.

[00:03:29] Speaker 02:
I think that Melgar Diaz predates, if I'm incorrect, please correct, I think Melgar Diaz predates this case.

[00:03:37] Speaker 02:
I think it was a 2001 case.

[00:03:40] Speaker 02:
No, Melgar Diaz was just 2021.

[00:03:43] Speaker 02:
Right, and this case came, this unpublished case came afterwards, and it says that it's an open question, so it's unpublished, it certainly doesn't bind the court, and if the court chooses to interpret Malgardias as meaning that nothing more is required,

[00:04:03] Speaker 02:
that certainly the government wouldn't object to that.

[00:04:07] Speaker 03:
But as I understand it, your view is also that if there were a need to have a case in which you drew a line, this isn't it.

[00:04:17] Speaker 02:
That's correct, Your Honor.

[00:04:20] Speaker 02:
We laid it out in great detail in a brief, but the instructions for the

[00:04:26] Speaker 02:
how the BLM is to proceed, what they have authority over and how they are to regulate the land.

[00:04:35] Speaker 02:
It's laid out in great detail in the FLIPMA.

[00:04:38] Speaker 02:
And so whatever additional the court would find is required, we believe that the statute here meets those requirements.

[00:04:45] Speaker 04:
And is that what you're asking us to say or do you want us to just say it's just the intelligible principal test and it doesn't matter whether it's a criminal statute or not?

[00:04:57] Speaker 02:
I mean, if the court wants to say that it's still an open question and not reach it in that case, that would be fine.

[00:05:03] Speaker 02:
If the court wants to say that until the Supreme Court rules on this, intelligible principle is all that is required, that's how I read this court's case law to this point.

[00:05:21] Speaker 02:
And if the panel is-

[00:05:25] Speaker 01:
I was thinking about this case

[00:05:31] Speaker 01:
obligation to have a tail light.

[00:05:35] Speaker 01:
It's set forth by statute.

[00:05:37] Speaker 01:
It's set forth by the legislature, right?

[00:05:41] Speaker 01:
It's not set forth by the police or the Department of Motor Vehicles.

[00:05:47] Speaker 01:
Why isn't that what should happen here?

[00:05:50] Speaker 01:
Why are we allowing the agency to make up legislative pronouncements?

[00:05:56] Speaker 02:
Well, Your Honor, I think there's a long line of cases that say, you know, Congress simply cannot do its job if it is not able to delegate the authority.

[00:06:09] Speaker 01:
The California legislature can do its job by saying, you have to have an operating red tail light at the back of your vehicle.

[00:06:18] Speaker 01:
They can do that.

[00:06:19] Speaker 01:
Why can't Congress do that?

[00:06:21] Speaker 01:
Why does it have to delegate it to an agency?

[00:06:26] Speaker 02:
Well, Your Honor, if we want to pick any particular statute, like any particular of the regs, Congress could do it.

[00:06:35] Speaker 02:
But I think the judgment of Congress over the past hundred years has been, we are going to give discretion to executive agencies to make these determinations.

[00:06:46] Speaker 02:
And of course, if we isolate each individual one, then the legislature could have done it.

[00:06:50] Speaker 02:
But many cases recognize

[00:06:54] Speaker 02:
that Congress simply cannot do its job if it's not able to call upon.

[00:06:58] Speaker 01:
And we've been cutting back recently in some cases on the ability of the agency to regulate without further congressional authority.

[00:07:10] Speaker 01:
For instance, Loper Bright was one issue.

[00:07:13] Speaker 01:
Did Jarkese versus SEC, does that have any effect on this case?

[00:07:18] Speaker 02:
It does not.

[00:07:20] Speaker 02:
We did talk about it, and I think it's readily distinguishable because the problem in Jarkazy was the SEC, without any standards, was deciding who got what legal process.

[00:07:32] Speaker 02:
They were pulling people out of the court system and putting them into there and denying people the right to process.

[00:07:39] Speaker 02:
And there's just no issue like that in this case.

[00:07:42] Speaker 02:
There's no doubt that Mr. Fesson had the right to, we had to charge it, and he appeared before a magistrate judge,

[00:07:48] Speaker 02:
be tried before a magistrate judge if it had proceeded to that point.

[00:07:51] Speaker 03:
Counsel, going to Judge Baez's first question, and I apologize for not knowing this if it's in the record, is the land where the alleged offense took place within the special maritime and territorial jurisdiction of the United States such that California law would be assimilated?

[00:08:12] Speaker 03:
Or such that whatever relevant state law there was would be assimilated under the Assimilative Crimes Act?

[00:08:21] Speaker 02:
I know where the land is.

[00:08:22] Speaker 02:
It's in Reno, Nevada.

[00:08:23] Speaker 02:
I'm sorry, Nevada, not California.

[00:08:27] Speaker 02:
I honestly do not know the answer to your question, Your Honor.

[00:08:31] Speaker 02:
I had not thought about that particular thing, and I don't know the answer to your question.

[00:08:35] Speaker 02:
I apologize.

[00:08:37] Speaker 04:
is it significant to the delegation analysis that this is that what we're dealing with here is a regulation of public land.

[00:08:45] Speaker 02:
Yes, your honor.

[00:08:45] Speaker 02:
I think that every

[00:08:49] Speaker 02:
As the courts address non-delegation issues as they arise, it looks at the context of the statute.

[00:08:59] Speaker 02:
So when it addresses a case about air pollution in the EPA, the fact that they're addressing air pollution sort of gives rise to, like it sort of animates the decision about the scope of the delegation.

[00:09:13] Speaker 02:
And the same with public lands, when the

[00:09:16] Speaker 02:
If you consider the fact that the government is a proprietor of the lands that it owns, it gives the BLM the ability to make regulations necessary for the use of the land, and Congress has laid out

[00:09:33] Speaker 02:
the goals that it has, multiple use, sustained yield, the statute lays out in detail how the land, how its policies for how the land is used, and then the agency figures out how to best accomplish the goals that Congress has laid out for it.

[00:09:53] Speaker 01:
But simply being a proprietor of land doesn't allow me to make something criminal on my land, does it?

[00:09:59] Speaker 02:
you know, certainly not your honor.

[00:10:00] Speaker 02:
And the government acts as both a legislature and a proprietor on federal land.

[00:10:10] Speaker 02:
And so when Congress can

[00:10:14] Speaker 02:
can make laws that govern the land.

[00:10:18] Speaker 02:
But my point was, the point to being a proprietor is the laws on public land are going to look different than, or the regulations on public land are going to look different than on private property.

[00:10:32] Speaker 02:
You know, we can, one of the funny examples they cited was

[00:10:36] Speaker 02:
regulating wild burrows.

[00:10:40] Speaker 02:
The government doesn't need to regulate wild burrows on people's own property the way that it needs to on public land.

[00:10:46] Speaker 02:
And so that's one of the regulations that the BLM has put in place.

[00:11:01] Speaker 02:
And I'll save the rest of my time for rebuttal if the panel doesn't have any other questions.

[00:11:08] Speaker 03:
All right.

[00:11:08] Speaker 02:
Thank you.

[00:11:26] Speaker 00:
Good morning.

[00:11:27] Speaker 00:
May it please the court?

[00:11:28] Speaker 00:
My name is Elise Henderson, and I'm here on behalf of Gregory Feasant.

[00:11:34] Speaker 00:
The district court correctly dismissed this prosecution under the non-delegation doctrine, and we're asking this court to affirm.

[00:11:41] Speaker 00:
I'd like to start by answering some of Your Honor's questions to government counsel before turning to the delegation language and some other aspects of the delegation that are problematic here.

[00:11:54] Speaker 01:
But Council, I have a problem with the decision below.

[00:11:58] Speaker 01:
The decision, in the first line of ERO 03, it says that the District Attorney of Nevada charged Gregory Pheasant with three felonies stemming from the alleged failure.

[00:12:16] Speaker 01:
There were no three felonies.

[00:12:18] Speaker 01:
There were one felony and two violations, right?

[00:12:21] Speaker 00:
That's correct, Your Honor.

[00:12:22] Speaker 01:
So what's wrong?

[00:12:23] Speaker 00:
Correct, and we're not challenging the felony under non-delegation grounds.

[00:12:28] Speaker 00:
Congress passed that.

[00:12:30] Speaker 01:
If there had been felonies, I was wondering, does non-delegation doctrine also allow turning congressional statutes which limit the violations to misdemeanors into felonies?

[00:12:44] Speaker 01:
And I'm glad you cleared that up.

[00:12:46] Speaker 00:
Yes, the assault charge was passed by Congress, so that's not at issue here.

[00:12:52] Speaker 00:
Your honor's asked about the assimilative crimes act.

[00:12:57] Speaker 00:
F, this court was to agree that the delegation here was unconstitutional.

[00:13:02] Speaker 00:
18 USC 13 would come into effect because there would not be other controlling federal criminal law.

[00:13:09] Speaker 03:
So the dirt where this occurred is within the special maritime and territorial jurisdiction of the United States?

[00:13:16] Speaker 00:
Yes.

[00:13:16] Speaker 00:
So my understanding is it would apply.

[00:13:19] Speaker 00:
Nevada law would be incorporated into any federal prosecution.

[00:13:23] Speaker 00:
And that's important here because invalidating the statute would not result in lawlessness on BLM land.

[00:13:30] Speaker 03:
But, of course, if the government is right, then the Assimilative Crimes Act wouldn't apply because, theoretically, Congress, through the Secretary, has spoken.

[00:13:42] Speaker 03:
If they're right.

[00:13:45] Speaker 00:
If they're right about the delegation.

[00:13:46] Speaker 00:
Right, Your Honor.

[00:13:48] Speaker 00:
Okay.

[00:13:49] Speaker 00:
It applies by default if there's no other controlling law.

[00:13:52] Speaker 03:
Right.

[00:13:53] Speaker 00:
And then there was a question about criminal law, criminal delegations in the Ninth Circuit.

[00:14:02] Speaker 00:
And Melgar Diaz did not address this issue.

[00:14:04] Speaker 00:
So the unpublished decision was correct that it is still an open issue in Nevada.

[00:14:08] Speaker 04:
Why didn't Melgar Diaz implicitly reject the argument that you're making?

[00:14:15] Speaker 04:
I mean, there the delegation was

[00:14:19] Speaker 04:
or the statute says you can't cross the border except at the designated places.

[00:14:23] Speaker 04:
And so it's a delegation to say effectively where you can cross the border.

[00:14:29] Speaker 04:
And we said that was fine.

[00:14:32] Speaker 04:
We didn't apply a heightened standard beyond the normal intelligible principle test.

[00:14:39] Speaker 04:
Why doesn't that strongly, at least strongly suggest the right analysis here?

[00:14:45] Speaker 00:
Because this court didn't say that it was rejecting a higher standard, it doesn't appear that it was in front of this court because it's not in the opinion itself whether a higher standard applies, like in some cases that the government cites.

[00:15:01] Speaker 00:
But our argument is also, we make the argument that criminal delegations are different.

[00:15:07] Speaker 00:
They should be looked at more closely.

[00:15:09] Speaker 00:
But our argument is that this delegation is unconstitutional under the current test, under the current precedent.

[00:15:15] Speaker 00:
It's unconstitutional because it does not provide an intelligible principle.

[00:15:20] Speaker 04:
Before you get to that, just a couple more questions.

[00:15:23] Speaker 04:
Why should it be different for a criminal case?

[00:15:26] Speaker 04:
I thought the theory of the non-delegation doctrine is that the vesting clause of Article 1 gives Congress legislative power, and that means they can't give legislative power to somebody else.

[00:15:39] Speaker 04:
And when we have a delegation, they either have or have not.

[00:15:45] Speaker 04:
violated that vesting, but I don't see why it would matter what kind of regulation it was or whether it was a criminal law or some other kind of law.

[00:15:59] Speaker 04:
The concerns with criminal laws seem sort of independent of the concerns with the vesting clause, so why is it relevant?

[00:16:06] Speaker 00:
It's relevant for a few reasons, Your Honor.

[00:16:09] Speaker 00:
And some commentators have talked about this recently.

[00:16:14] Speaker 00:
Justice Gorsuch, when he was a judge on the 10th Circuit, talked about it.

[00:16:19] Speaker 00:
The idea that a resident of the United States can be prosecuted and put in jail is the highest implication of liberty interests.

[00:16:30] Speaker 00:
And the point of separation of powers is to protect liberty.

[00:16:34] Speaker 00:
And when you have delegation to the executive branch,

[00:16:37] Speaker 00:
of criminal lawmaking power, that's the same branch that's interpreting and applying the law.

[00:16:45] Speaker 00:
So you're delegating to the executive branch the ability to create criminal law on BLM land and then also arrest people for that law that it created and it's condensing too much power in one branch of the government and that's what the framers were most worried about when they created the three

[00:17:07] Speaker 00:
the three-branch system that we have.

[00:17:13] Speaker 04:
I had always thought of the intelligible principle test as a way of getting at the question, has Congress actually made the judgment here?

[00:17:22] Speaker 04:
And what the executive branch is doing is just sort of interstitial policy making that's ancillary to execution of the laws and not legislation.

[00:17:32] Speaker 04:
Or has Congress delegated legislative authority?

[00:17:38] Speaker 04:
And so if you're saying that that test is not adequate in the criminal context, what would we look for in a statute if it's not an intelligible principle?

[00:17:48] Speaker 04:
What would be the heightened standard that you would have a supply?

[00:17:52] Speaker 00:
We're not asking for a different test than intelligible principle test.

[00:17:56] Speaker 00:
What we're asking for is that in criminal delegations, the courts take a closer look.

[00:18:03] Speaker 00:
It's hard to say where the line is between a permissible delegation and an impermissible one in the criminal or the civil context.

[00:18:12] Speaker 00:
But what it would look like for delegations to interior agencies,

[00:18:18] Speaker 00:
I think the delegation here provides much less guidance to the agency than delegations to, for example, the National Forest Service, where the delegation says create criminal law to protect against destruction.

[00:18:33] Speaker 00:
So taking that one that's closer to Congress setting the policy,

[00:18:39] Speaker 00:
If there was a higher standard for the intelligible principle test in the criminal context, that might get a closer look than when a different circuit was looking at that same delegation some time ago.

[00:18:54] Speaker 03:
Council, if you were right in terms of the delegation here being, excuse me.

[00:19:05] Speaker 03:
being unconstitutional for the reasons you've stated, why wouldn't the Assimilative Crimes Act itself be unconstitutional?

[00:19:14] Speaker 00:
because Congress passed that act, Your Honor.

[00:19:17] Speaker 03:
And it's- But isn't in the act, Congress essentially delegating to state and municipal authorities the ability to define what is and what isn't a crime on huge swaths of federal land without not only no guidance, but with the inability to provide guidance.

[00:19:41] Speaker 00:
It's still Congress making the policy choice that we think state law should apply for federal land in the different states.

[00:19:49] Speaker 00:
It's still Congress making that initial policy decision that it's not making with the statute here.

[00:19:54] Speaker 03:
So making the policy decision that

[00:19:57] Speaker 03:
50 different murder statutes, well, not murder, that's the wrong one, but 50 different traffic offenses, 50 different other kinds of felonies are going to apply, or 54.

[00:20:12] Speaker 03:
But here, with what they've said to the Bureau and the Secretary, that that isn't okay, but

[00:20:26] Speaker 03:
delegating to state authorities, essentially the ability to determine crime and punishment throughout the United States on federal land is okay?

[00:20:36] Speaker 00:
The people prosecuted under Section 13 are still being prosecuted under federal law.

[00:20:42] Speaker 00:
And if voters had a problem with Section 13, their problem is with the legislature who passed it.

[00:20:52] Speaker 00:
Because the federal courts aren't

[00:20:55] Speaker 00:
So they're looking to state law for guidance, but they're still applying federal law in federal court, and Congress is responsible and accountable for passing that law.

[00:21:10] Speaker 00:
delegated the power to pass laws to unelected agency officials, and they're prohibiting with criminal rules and regulations a wide variety of actions on public land.

[00:21:25] Speaker 00:
And if people have problems with those regulations, Congress isn't responsible for passing them.

[00:21:31] Speaker 00:
It's unelected agency officials.

[00:21:34] Speaker 00:
And government council gave the example of wild boroughs.

[00:21:38] Speaker 00:
But there are other examples.

[00:21:40] Speaker 00:
There are some political sensitivities with that.

[00:21:43] Speaker 00:
But there are other examples, too, where Congress should be creating the law because it's politically sensitive.

[00:21:50] Speaker 00:
They should be making the policy choice, for example,

[00:21:56] Speaker 00:
promoting natural resources and private contracts to develop natural resources.

[00:22:02] Speaker 03:
In that regard, if I'm looking, for example, at 1733A, regulations necessary to implement the provisions of this act with respect to the management use and protection of public lands, including the property located thereon, that's an unintelligible principle vis-a-vis the standards you just discussed.

[00:22:26] Speaker 00:
correct, it's hard to think of something that would not relate to the management use and protection of the public lands.

[00:22:34] Speaker 04:
And I think the GSA delegation- So the Communications Act refers to public interest, convenience, and necessity.

[00:22:44] Speaker 04:
And a lot of sort of contemporary statutes have similar regulatory language.

[00:22:50] Speaker 04:
And that's been upheld for a long time.

[00:22:52] Speaker 04:
You think this is less

[00:22:54] Speaker 04:
of an intelligible principle than public interest, convenience, and necessity.

[00:22:58] Speaker 00:
The language is similar and the language is similar to the GSA delegation.

[00:23:02] Speaker 00:
What's different here is the agency itself.

[00:23:05] Speaker 00:
And this court looks to not just the statutory language, but also the mission of the agency and whether that provides a limiting principle.

[00:23:14] Speaker 00:
So when you have a statute that delegates the protection of GSA buildings, that's a limited universe of regulations that GSA can enact.

[00:23:25] Speaker 00:
Protecting a federal courthouse,

[00:23:28] Speaker 00:
Congress sets the policy for that building, and GSA does some pretty predictable things to protect a federal courthouse.

[00:23:36] Speaker 00:
With BLM land in particular, there are a lot of different policy interests for BLM land.

[00:23:42] Speaker 00:
It is a lot of land in the United States and two-thirds of Nevada, so policy for some land

[00:23:50] Speaker 00:
is going to look different than policy for other land.

[00:23:54] Speaker 00:
And there's going to be competing interests like promoting recreation, preserving historical sites, and developing natural resources like timber, oil, and natural gas.

[00:24:09] Speaker 00:
And it should be Congress who is specifying what the policy is, not the agency.

[00:24:15] Speaker 04:
Go ahead.

[00:24:17] Speaker 04:
I wonder if the, this is the same question I asked your friend, does the fact that it's public land though cut against you in the sense that the Supreme Court has said that Congress has complete power over federal lands that's analogous to the police power of the states.

[00:24:35] Speaker 04:
All of which suggests that maybe Congress should get more leeway when it comes to regulating federal property than when it's reaching out and regulating the activities of individuals on their own property, rather than less.

[00:24:49] Speaker 04:
So what's your answer to that?

[00:24:51] Speaker 00:
A few responses, Your Honor.

[00:24:53] Speaker 00:
First, that clause of the Constitution, like the taxing power, is vested in Congress.

[00:25:00] Speaker 00:
So Congress is still limited by the non-delegation principle from delegating legislative power.

[00:25:06] Speaker 00:
Now, if we were challenging the agency's civil regulations,

[00:25:11] Speaker 00:
It would be a harder question because the executive branch does retain some inherent authority to manage the public lands.

[00:25:22] Speaker 00:
Like this court said in Melgar Diaz, the executive branch

[00:25:27] Speaker 00:
has some inherent authority to regulate immigration and the placement of border crossings.

[00:25:33] Speaker 00:
But the executive branch does not have inherent authority to create criminal law.

[00:25:40] Speaker 00:
That is a core legislative task that is vested in Congress.

[00:25:45] Speaker 00:
And Congress can delegate fact-finding to support

[00:25:51] Speaker 00:
That criminal lawmaking, it can delegate to the agency to fill up the details, but it can't delegate to the agency the creation of criminal law.

[00:26:03] Speaker 00:
That has to stay with Congress.

[00:26:05] Speaker 03:
So it doesn't make any difference what the criminal law is?

[00:26:13] Speaker 00:
Under this delegation, no, Your Honor.

[00:26:16] Speaker 03:
Under your theory, it doesn't make any difference whether the delegation is vis-a-vis a violation for littering or like a 25-year felony.

[00:26:30] Speaker 03:
It's all out no matter what the actual criminal regulation, no matter the conduct that's prohibited.

[00:26:39] Speaker 00:
So correct, this court would look only to the delegation itself, not the regulations that are enacted under that delegation.

[00:26:48] Speaker 00:
So we're not saying it's unreasonable for BLM to create these regulations, but that's not the test.

[00:26:54] Speaker 00:
The test looks at the delegation itself.

[00:26:55] Speaker 03:
So if the statute had said we specifically delegate to the secretary the ability to criminally punish tail light violations, that would be out?

[00:27:10] Speaker 00:
That would be fine because Congress is setting the law.

[00:27:14] Speaker 03:
So Congress, it would be okay if Congress mentioned taillights, but it wouldn't be okay with the language here, management use and protection of public lands.

[00:27:25] Speaker 00:
Correct, because

[00:27:28] Speaker 00:
Congress needs to choose the policy.

[00:27:30] Speaker 00:
So if Congress's policy choice is we want to enforce regular traffic code violations on BLM land, it could absolutely do that.

[00:27:38] Speaker 03:
So they could say that and then in your view, the secretary could have regulations which would set the criminal penalties.

[00:27:46] Speaker 00:
The penalties are in the statute itself.

[00:27:50] Speaker 03:
But the secretary could adopt those criminal, could pass the same regulation that's at issue here if Congress had said tail lights or traffic offenses.

[00:28:01] Speaker 00:
And I think Melgar Diaz provides a good example of this.

[00:28:05] Speaker 00:
In Melgar Diaz, this court said that it's okay for Congress to pass a criminal law about crossing a street outside a crosswalk.

[00:28:17] Speaker 00:
And then the agency can choose where the crosswalk is.

[00:28:19] Speaker 00:
Speeding is another example.

[00:28:21] Speaker 00:
Congress can make it criminal to speed on federal land.

[00:28:26] Speaker 00:
The agency can determine what the speed limit is based on fact-finding.

[00:28:30] Speaker 00:
it would traffic offenses be good enough it's it's a closer question your honor because

[00:28:37] Speaker 00:
that does still involve a lot of discretion to the agency to choose those traffic violations, but at least it's limited in some way.

[00:28:46] Speaker 00:
Unlike here, where it could be traffic violations, it could be restrictions on speech outside designated areas, it could be restrictions on hunting.

[00:28:56] Speaker 00:
There's a lot of different choices BLM is allowed to make and is making under this delegation that involve sensitive political decisions that elected representatives in Congress should be making.

[00:29:06] Speaker 04:
I think that's a good point.

[00:29:07] Speaker 04:
I think that's a good point.

[00:29:08] Speaker 04:
And when I asked you about why this is worse than public interest convenience and necessity, that was your answer, that there are sensitive political considerations here and competing policy concerns.

[00:29:21] Speaker 04:
But isn't that equally true of what the FCC does, what FERC does,

[00:29:31] Speaker 04:
public interest convenience and necessity or, you know, just and reasonable or some similar statutory language.

[00:29:38] Speaker 04:
I mean, they're balancing policies and adopting regulations that are incredibly important economically.

[00:29:46] Speaker 04:
So do you have a distinction other than sort of how consequential these policies are?

[00:29:53] Speaker 00:
Yes, Your Honor.

[00:29:55] Speaker 00:
It's not that the agency is doing important politically sensitive tasks.

[00:29:59] Speaker 00:
It's that the agency in these other cases is given guidance from Congress about what the boundaries of their discretion is.

[00:30:08] Speaker 00:
So the agency is limited by the mission of the FCC and by the delegation itself in ways that BLM is not limited here.

[00:30:19] Speaker 00:
So the FCC couldn't,

[00:30:24] Speaker 00:
make whatever regulations it wanted to as long as it relates in some way to communication systems.

[00:30:33] Speaker 00:
But here, BLM can make any regulations it wants to as long as it relates to the land.

[00:30:38] Speaker 00:
And anything BLM does that controls on the land is going to relate to the use of that land.

[00:30:44] Speaker 00:
If BLM is restricting private conduct on that land.

[00:30:47] Speaker 04:
It does have to be

[00:30:49] Speaker 04:
implementing the Act, right?

[00:30:50] Speaker 04:
And the Act says that the land is supposed to be managed under principles of multiple use and sustained yield, right?

[00:30:56] Speaker 04:
So that's a principle that's supposed to guide the Secretary, isn't it?

[00:31:04] Speaker 00:
The government argues that it does, but it doesn't meaningfully limit the agency because multiple use and providing the policy statements in Section 1701

[00:31:17] Speaker 00:
That covers everything that the delegation itself covers.

[00:31:21] Speaker 00:
If the agency is making a criminal regulation that relates to the use of the land, they can pick one of the policy statements it also relates to.

[00:31:31] Speaker 00:
It's going to relate if the land is open for public recreation, it relates to recreation.

[00:31:36] Speaker 00:
If it is related to protecting oil drilling, then it relates to natural resources.

[00:31:42] Speaker 00:
There's no limiting principle

[00:31:43] Speaker 00:
And that makes this case like the policy guidance in Panama refining and sector poultry where, yes, there were some aspirational goals at the beginning of those statutory schemes, but it didn't limit agency discretion.

[00:32:00] Speaker 01:
Ms.

[00:32:00] Speaker 01:
Henderson, on that question, I know your time is up.

[00:32:03] Speaker 01:
I took a note here is that the creation of criminal law is a function that is restricted only to Congress.

[00:32:10] Speaker 01:
Do you have a case that says that?

[00:32:15] Speaker 00:
Not a case that says that.

[00:32:16] Speaker 00:
My answer is that all lawmaking is restricted to Congress.

[00:32:25] Speaker 01:
Criminal lawmaking, especially because of... I think you've answered my question, which is, do you have a case that holds that?

[00:32:32] Speaker 00:
I don't have a case off the top of my head.

[00:32:34] Speaker 00:
I'm not sure if some of the commentary and some of the, like, Justice Gorsuch's dissent in Gandhi, I'm not sure if it touches on that.

[00:32:45] Speaker 00:
But the law is clear.

[00:32:47] Speaker 00:
The Congress can't delegate legislative power.

[00:32:50] Speaker 00:
The question is the line between legislative and not legislative.

[00:32:54] Speaker 03:
Counsel, you're over time, but we've asked a lot of questions.

[00:32:58] Speaker 03:
Do you have a concluding point you want to make or do you want to rest on your argument?

[00:33:06] Speaker 00:
I'm sorry.

[00:33:06] Speaker 00:
I'm sorry.

[00:33:06] Speaker 00:
I'm sorry.

[00:33:07] Speaker 00:
We would just ask that this court affirm because the statute lacks a intelligible principle.

[00:33:11] Speaker 03:
Thank you.

[00:33:13] Speaker 03:
All right.

[00:33:14] Speaker 03:
Thank you.

[00:33:15] Speaker 02:
And the government has

[00:33:27] Speaker 02:
I wanted to point the Court's attention to United States versus Grimaud, which we cite in our briefs.

[00:33:33] Speaker 02:
It's from 1911, and it says, Congress often authorizes agencies to promulgate regulations, the violation of which Congress has made a crime.

[00:33:45] Speaker 02:
And that's what happened here.

[00:33:46] Speaker 02:
The Congress said make regulations.

[00:33:51] Speaker 02:
The BLM made regulations.

[00:33:53] Speaker 02:
The BLM did not make them a crime.

[00:33:55] Speaker 02:
Congress made the crime.

[00:33:57] Speaker 02:
And that has been the law of this country for 100 and something 14 years.

[00:34:03] Speaker 02:
And listening to my friend on the other side's argument reminded me of Justice Alito's concurrence in Gandhi

[00:34:13] Speaker 02:
where he said, if the court was willing to revisit the whole thing, the whole non-delegation doctrine, then he might be willing to do that.

[00:34:24] Speaker 02:
But to pick out that one statute in that Gundy case would have been, I think the word he said was freakish, don't quote me, but it would have been

[00:34:33] Speaker 02:
this is a very unusual this this statute this flip the statute fits well within the that the prior case law on this issue from this court and the Supreme Court and what the what the district court did here was a very large departure from from precedent.

[00:34:54] Speaker 02:
And if the court doesn't have any other

[00:34:57] Speaker 03:
Thank you.

[00:34:58] Speaker 03:
We thank counsel for their arguments.

[00:35:00] Speaker 03:
The case just argued has been submitted.

[00:35:03] Speaker 03:
I would also note that this was the panel that was going to hear cases tomorrow.

[00:35:10] Speaker 03:
We have submitted all those cases on the briefs as of tomorrow, and I would put on the record that Waypite versus Garland, United States versus Henry, Shields versus Credit One Bank, and Meza Perez versus Sabaro.

[00:35:25] Speaker 03:
will be submitted on the briefs as of tomorrow.

[00:35:29] Speaker 03:
With that, we are adjourned for the day and the week.

[00:35:31] Speaker 03:
Thank you.

[00:35:58] Speaker 02:
Okay.