[00:00:00] Speaker 02:
Your Honor, before I begin, may I reserve four minutes for rebuttal?

[00:00:03] Speaker 02:
Yes.

[00:00:04] Speaker 02:
Aspirationally, you may.

[00:00:09] Speaker 02:
Thank you, Your Honor.

[00:00:09] Speaker 02:
May it please the court?

[00:00:13] Speaker 05:
This case involves... Can you tell us who you are, just so I have a good record?

[00:00:16] Speaker 05:
I'm an old trial judge, so I like to have a good record.

[00:00:18] Speaker 02:
Yes, Your Honor.

[00:00:19] Speaker 02:
Justin Smith for the appellants, Arizona State Legislature, the Arizona State Treasurer, Mojave County, Fredonia, and the Colorado City.

[00:00:29] Speaker 02:
Go ahead.

[00:00:30] Speaker 02:
May I proceed?

[00:00:32] Speaker 02:
This case involves whether government bodies and officials can challenge former President Biden's creation of a 900,000 acre national monument in northern Arizona.

[00:00:41] Speaker 02:
There are three undisputed facts that demonstrate that appellants have standing to bring these claims.

[00:00:47] Speaker 02:
First, it is undisputed that the proclamation immediately prohibited certain mining activities that up until that point had been legal.

[00:00:57] Speaker 02:
Second,

[00:00:58] Speaker 02:
As it currently stands, the proclamation will be the only prohibition on all mining activities in January 2032.

[00:01:05] Speaker 02:
And third, every party in this case has at some point or another agreed that banning mining in these areas will cost revenue from the state and local governments.

[00:01:18] Speaker 02:
These undisputed facts demonstrate the three elements of standing that were required to plead at the motion to dismiss stage, the injury and fact causation and redressability.

[00:01:27] Speaker 02:
and therefore the district court's decision should be reversed.

[00:01:31] Speaker 04:
Was there any mining that was happening that had to stop?

[00:01:35] Speaker 02:
Your Honor, the record shows that in 2012 there had been a withdrawal for certain mining activities for 20 years.

[00:01:43] Speaker 02:
The petition, the complainant alleges in paragraph 7 and paragraph 193b, for example, that there would be a loss of revenue from the proclamation, both now and in the future,

[00:01:55] Speaker 02:
The record doesn't have any facts about what was taking place at that time because it was a motion to dismiss, and that type of evidence isn't needed at the motion to dismiss stage.

[00:02:03] Speaker 02:
That's more what you would see at a summary judgment proceeding.

[00:02:06] Speaker 02:
Or had there been a factual challenge, then the plaintiffs would have been required to submit that evidence.

[00:02:12] Speaker 02:
But this wasn't.

[00:02:13] Speaker 04:
But given the withdrawal, is there an allegation that money was actually immediately ceased at the time that the proclamation happened?

[00:02:23] Speaker 02:
So the allegation is that there were mining activities that were allowed, like mineral and... Allowed, but actually happening?

[00:02:29] Speaker 04:
Is there an allegation that they were actually happening?

[00:02:32] Speaker 02:
There was not an allegation that it was happening on August of 2023, but that it was allowed between that time and going forward, that there was no prohibition from the 2012 withdrawal.

[00:02:42] Speaker 02:
And there was an allegation, for example, for Mojave County in 193B, that the proclamation would cost tax revenue from Mojave County.

[00:02:50] Speaker 02:
And so...

[00:02:51] Speaker 02:
Again, because this was a facial challenge and not a factual challenge, that's all that the plaintiffs needed to allege at that point.

[00:02:58] Speaker 02:
And the courthouse news service case by this court does a good job of distinguishing between a facial and a factual challenge.

[00:03:04] Speaker 02:
For the appellees to convert this into a factual challenge, they needed to submit affidavits or evidence to contest the allegations.

[00:03:12] Speaker 02:
And that wasn't done here.

[00:03:13] Speaker 05:
Excuse me.

[00:03:13] Speaker 05:
I'm just going to interrupt you.

[00:03:14] Speaker 05:
Can you stop the clock for one sec?

[00:03:17] Speaker 05:
Do I have a plug here?

[00:03:24] Speaker 05:
I just don't want to dive under the desk here.

[00:03:27] Speaker 05:
Thank you.

[00:03:42] Speaker 05:
All right, you can proceed.

[00:03:43] Speaker 05:
I'm sorry.

[00:03:44] Speaker 02:
Thank you.

[00:03:45] Speaker 02:
So I was just talking about how this is a facial challenge.

[00:03:48] Speaker 02:
And under Luhan, the fact that this is a facial challenge means three things.

[00:03:54] Speaker 02:
All the allegations in the complaint are assumed to be true.

[00:03:57] Speaker 02:
It means that all those allegations are construed in the plaintiff's favor.

[00:04:01] Speaker 02:
And three, that any of the allegations are presumed to embrace the facts that would be needed to support those claims.

[00:04:07] Speaker 05:
So are you familiar with the Arizona Alliance Ambon case?

[00:04:12] Speaker 05:
Yes, Your Honor.

[00:04:13] Speaker 05:
Okay, I think I'm the only one of our panel that was actually on that and we haven't actually issued an opinion, but are any of the, but you obviously know that when we go on bonk, we can revisit

[00:04:27] Speaker 05:
precedent of the Ninth Circuit on standing issues, meaning that what cases are you relying on in the Ninth Circuit to give you standing?

[00:04:39] Speaker 05:
I'm just curious to see if that case might influence whether you have standing or not.

[00:04:45] Speaker 02:
Yes, your honor.

[00:04:46] Speaker 02:
So I point to a few and I'll come back to that particular case in a minute.

[00:04:49] Speaker 02:
But Maya versus Syntax Corporation would be a good case from 2011 showing that we didn't need to plead the specific dollar amounts that were issue.

[00:04:57] Speaker 02:
The California Restaurant Association case from 2024 and the people for public lands cases are cases that show that we don't have to be specific in what types of minerals would be mined.

[00:05:08] Speaker 05:
But what about are you are you relying on havens at all?

[00:05:12] Speaker 02:
We don't rely on havens.

[00:05:14] Speaker 02:
So the case that you're referring that went on bank was actually, the penal opinion was relied on by the district court for its opinion.

[00:05:21] Speaker 02:
And that was one of our allegations of error in this case was that there was a reliance on that decision in the diversion of resources analysis, which is our third standing argument.

[00:05:33] Speaker 02:
And that after the district court ruled, this court took the case on bank.

[00:05:37] Speaker 02:
And so we've argued that that is a reason that this case should be remanded for the district court to revisit that issue after we get the en banc ruling.

[00:05:47] Speaker 04:
So you're arguing back to this issue of whether there was mining revenue that was cut off.

[00:05:54] Speaker 04:
You're arguing that you have an allegation that revenue was lost and that that should just, I guess, be taken as true.

[00:06:00] Speaker 04:
But if an allegation is too speculative or implausible,

[00:06:07] Speaker 04:
it doesn't need to be taken as true.

[00:06:09] Speaker 04:
And if you are saying that there wasn't mining happening at the time, why isn't it implausible that there was revenue coming from mining that wasn't happening?

[00:06:17] Speaker 02:
Yeah.

[00:06:17] Speaker 02:
So, Your Honor, to the question of immediate harm, I'd make three points.

[00:06:21] Speaker 02:
The first is one that I already made, that it's undisputed that there's a difference between the proclamation and the 2012 withdrawal and what's affected.

[00:06:28] Speaker 02:
The second thing I'd point to is that the proclamation makes the National Monument the dominant reservation for this area.

[00:06:36] Speaker 02:
So currently all mining is technically predominantly banned by the proclamation, not the 2012 withdrawal.

[00:06:43] Speaker 02:
And third, I would point out that the interveners below all talked about the immediate impacts that this monument was giving them.

[00:06:50] Speaker 02:
So for example, there were 10 environmental groups that attempted to intervene.

[00:06:54] Speaker 02:
And they discussed that the proclamation immediately protects their interests by prohibiting certain activities and directing the creation of a new management plan.

[00:07:03] Speaker 02:
And so the parties below, including the attempted interveners, all believe that this proclamation had immediate effect.

[00:07:10] Speaker 02:
But that alone is not all that we need to show or would be enough to support standing.

[00:07:14] Speaker 02:
I'd point to the certainly impending effect of the January 2032 date.

[00:07:20] Speaker 02:
And the district court improperly dismissed that based on a temporal proximity argument.

[00:07:26] Speaker 02:
So the argument being that we just filed too soon.

[00:07:29] Speaker 02:
And that's wrong for a few reasons.

[00:07:30] Speaker 02:
The first is, unlike in Lujan, where a ticket needed to be purchased or a trip needed to be taken to go see crocodiles in Egypt or elephants in Sri Lanka, here we have a date certain of when the proclamation will be the only prohibition in the area.

[00:07:45] Speaker 02:
And that's January of 2032.

[00:07:46] Speaker 02:
We can point to a specific date on the calendar.

[00:07:49] Speaker 02:
That distinguishes this case from Lujan.

[00:07:51] Speaker 02:
Also, we pointed in our brief to a number of circuit court cases in which courts allowed cases to begin

[00:07:58] Speaker 02:
years before something took effect.

[00:08:00] Speaker 02:
So I direct the court to the DC Circuit's decision in the village of Bensonville versus FAA.

[00:08:05] Speaker 02:
That was a case where the challenge was brought 13 years before a fee was collected by the city of Chicago.

[00:08:11] Speaker 02:
And there were other cases like Orangeburg versus FERC that was five years in advance.

[00:08:15] Speaker 04:
So for your clients to be injured in this 2032 date in the future, there needs to be an economic incentive to do the mining at that point in time.

[00:08:26] Speaker 04:
How do we know that that will be true?

[00:08:28] Speaker 04:
given the prices in 2032.

[00:08:30] Speaker 04:
So I'd make three points today.

[00:08:33] Speaker 05:
I think I want to kind of expand on that so you can answer it all.

[00:08:37] Speaker 05:
Because one theory, if you're standing advanced by Mojave County, Colorado City, and the town of Fredonia relates to the lost tax revenue from uranium mining.

[00:08:47] Speaker 05:
Doesn't this argument depend on the price of uranium in 2032 and whether mining companies would be willing to mine uranium in 2032?

[00:08:56] Speaker 05:
So how is that not

[00:08:58] Speaker 05:
too speculative to establish standing.

[00:09:01] Speaker 05:
So can you sort of incorporate that with what Judge Friedland's asking you?

[00:09:05] Speaker 02:
Absolutely.

[00:09:06] Speaker 02:
So I'll start broader and then make the three points I was going to make to Judge Friedland.

[00:09:09] Speaker 02:
So broadly, last summer the Supreme Court made a really important decision in diamond alternative energy.

[00:09:15] Speaker 02:
It involved the electric vehicle mandate in California.

[00:09:19] Speaker 02:
And that case was brought by fuel producers, not by industry.

[00:09:22] Speaker 02:
And the allegation was that this California mandate is requiring more electric cars, and that therefore is creating market consequences of less gasoline purchase.

[00:09:33] Speaker 02:
And in a 7-2 decision, the Supreme Court said that that case had standing.

[00:09:38] Speaker 02:
And the two dissents were on whether the court should have taken cert anyway.

[00:09:42] Speaker 02:
And the opinion written by Justice Kavanaugh does a really good job of addressing your question, Judge Callahan, and Judge Friedland's as well, because it goes through and says the whole reason for that regulation was to have a market effect.

[00:09:55] Speaker 02:
That's why it was put in place.

[00:09:57] Speaker 02:
That's what California and EPA had said was the reason for it being in place.

[00:10:01] Speaker 02:
And here we have that same type of evidence.

[00:10:03] Speaker 02:
The whole reason to issue a proclamation nine years before

[00:10:06] Speaker 02:
the withdrawal expired.

[00:10:08] Speaker 02:
We look at paragraph 160 of our complaint.

[00:10:10] Speaker 02:
President Biden expressively said it was to ban mining in the area, and there were sources that talked to the New York Times and the Washington Post that said the same thing.

[00:10:18] Speaker 02:
We look at the interveners in this case that are a reference.

[00:10:21] Speaker 02:
The environmental groups, the tribal nations, the state of Arizona all said that we will lose protections and benefits if this proclamation is reversed.

[00:10:30] Speaker 02:
So all the parties here believe that the proclamation was needed to prevent that mining,

[00:10:35] Speaker 02:
And to the three points that I was going to direct to Judge Friedland, that is the first, that the parties and President Biden and all said this is the purpose of the proclamation and that's in diamond alternative energy straight up the analysis that the court had.

[00:10:50] Speaker 02:
The second would be,

[00:10:53] Speaker 02:
the interveners, all saying that.

[00:10:55] Speaker 02:
We have in our briefs the specific citations to the environmental groups and the tribal nations in the state of Arizona.

[00:11:00] Speaker 02:
And then the third point is just the consistent history of elevated uranium prices.

[00:11:05] Speaker 02:
We talked about in our brief how for 246 of 249 months the price had been higher than it was when hundreds of mining claims were being staked in that area.

[00:11:14] Speaker 02:
It's a very consistent pattern.

[00:11:15] Speaker 02:
So the court doesn't need to speculate.

[00:11:18] Speaker 02:
The Diamond Alternative Energy case, Justice Jackson complained that some of the data was based on 2011 figures and yet the 7-2 court still went through that analysis and said that this is a market affecting regulation and so you can make common sense inferences.

[00:11:37] Speaker 02:
of what the economics would happen here.

[00:11:40] Speaker 02:
And here there's clearly a desire for uranium because it's much more expensive than it was 20 years ago.

[00:11:45] Speaker 02:
And so that's why we can't.

[00:11:46] Speaker 05:
Let me ask you, do either of my colleagues want to ask any additional questions or may he reserve at this point?

[00:11:53] Speaker 05:
You can reserve the balance.

[00:11:55] Speaker 05:
Thank you, Your Honor.

[00:11:55] Speaker 05:
Thank you.

[00:12:02] Speaker 05:
Good morning.

[00:12:02] Speaker 03:
Good morning, Your Honors, and may it please the Court, Amy Collier on behalf of the federal defendants.

[00:12:08] Speaker 03:
I would like to start kind of where we left off with diamond energy and, you know, what's going to happen in 2032.

[00:12:13] Speaker 03:
And just to emphasize again, the distinction here is that the plaintiffs in this case are not themselves seeking to mine for uranium or undertake this economic activity at all.

[00:12:25] Speaker 03:
Instead, they're relying on speculation that several years from now, other entities, third parties, again not before the court, will decide that A, the price of uranium is high enough that we want to stake new mining claims, B, that we will stake those new mining claims rather than develop existing mining claims that are already still valid existing rights that can still be developed in this mining area.

[00:12:49] Speaker 03:
that will choose those claims over mining elsewhere in the country, and that those mining activities would produce some sort of illusory revenue for these local governments.

[00:12:59] Speaker 05:
I think the appellants point to 21 years of uranium prices to demonstrate that the price of uranium in 2032 will be sufficiently high to attract mining companies

[00:13:11] Speaker 05:
and ultimately gain revenue from those companies.

[00:13:15] Speaker 05:
How do you respond to this evidence and how would we interpret it as part of our analysis?

[00:13:21] Speaker 03:
Sure, so I think the volatility in your mining and prices is relevant.

[00:13:26] Speaker 03:
But I think, again, that's just one factor that these third parties, who, again, are not before the court, might consider in determining whether they will mine in this particular area, whether they will seek to develop existing mining claims that already exist and that could be developed, or whether they will take the risk of locating new mining claims in the monument area.

[00:13:46] Speaker 03:
So that's part of it.

[00:13:47] Speaker 03:
That's part of the equation that they might factor in.

[00:13:50] Speaker 03:
But it's not the only factor.

[00:13:53] Speaker 03:
And again, it's not the plaintiffs here that are claiming that that is something that they would consider.

[00:13:57] Speaker 03:
And then again, it's just part of the sequence that it's not even that we're challenging based on the revenue that the mining companies themselves could make, but some sort of speculative tax revenue that the local governments would make.

[00:14:11] Speaker 03:
And in their complaint themselves, they sort of, they acknowledge that there's quote, only a chance that these new mining claims will be staked in 2032.

[00:14:18] Speaker 05:
I think the appellants also alleged that the district court applied the incorrect pleading standard and argued that you do not defend against this claim.

[00:14:28] Speaker 05:
What is your response?

[00:14:29] Speaker 05:
Do you believe the district court applied the correct pleading standard or not?

[00:14:33] Speaker 03:
I do believe the district court applied the correct standard.

[00:14:36] Speaker 03:
You can look at the district court's order, and it repeatedly says that the plaintiffs failed to allege sufficient facts that would support their standing.

[00:14:45] Speaker 03:
Now, it did address that earlier case and the evidence that was presented in that case and said that had more evidence there, but it didn't say that the plaintiffs here needed to provide that evidence.

[00:14:56] Speaker 03:
It simply said,

[00:14:57] Speaker 03:
that the plaintiffs did not allege the sort of facts that were alleged in the prior case.

[00:15:02] Speaker 03:
So throughout the district court's order, you can see that it's applying that allegation standard that is consistent with this court's jurisprudence.

[00:15:10] Speaker 04:
And we're on de novo review anyway, so in a sense it doesn't matter?

[00:15:13] Speaker 03:
That's correct.

[00:15:15] Speaker 03:
And then I would like to touch a little bit more on diamond energy.

[00:15:18] Speaker 03:
So again, in that case, you had the fuel producers themselves challenging a regulation that was directly aimed at reducing the consumption of fuel.

[00:15:28] Speaker 03:
The Supreme Court noted that the California law was aimed specifically at doing that.

[00:15:34] Speaker 03:
Here, the monument proclamation does restrict new mining claims and restrict other mining activities.

[00:15:41] Speaker 03:
But the goal of the monument

[00:15:42] Speaker 03:
designation is not to reduce local revenue in any way.

[00:15:46] Speaker 03:
That's an additional step that they are alleging has occurred.

[00:15:49] Speaker 05:
Well, I think the appellants assert that the proclamation has an immediate impact related to certain conservation goals.

[00:15:56] Speaker 05:
Do you believe these asserted impacts are sufficient to establish harm for Article III standing?

[00:16:02] Speaker 05:
Why or why not?

[00:16:03] Speaker 03:
So in terms of other activities that they have alleged the proclamation does immediately affect, I think one of the examples of that is geothermal leasing.

[00:16:13] Speaker 03:
There are no allegations anywhere in the complaint that there have been interests in those activities, that there is prospective revenue coming in at all from those activities, and that there really are any injuries at all related to those activities.

[00:16:27] Speaker 03:
Now, the proclamation does do something.

[00:16:29] Speaker 03:
It does restrict those activities.

[00:16:30] Speaker 03:
That's not to say

[00:16:32] Speaker 03:
some plaintiff could challenge the proclamation based on certain economic injuries.

[00:16:37] Speaker 03:
But just these plaintiffs here have not alleged sufficient facts to show that they have suffered an injury from those sorts of restrictions.

[00:16:46] Speaker 04:
Could I go back to the third party?

[00:16:50] Speaker 04:
It's speculative because there are third parties who are involved here and whether they would actually do the mining.

[00:16:55] Speaker 04:
Is that the main problem or is the time to 2032

[00:17:00] Speaker 04:
part of the problem.

[00:17:01] Speaker 04:
It seems like maybe your argument is really more the first and not the second.

[00:17:05] Speaker 03:
I think it's both.

[00:17:05] Speaker 03:
So I think the temporal aspect factors into sort of the uncertainty of what parties will do in the future.

[00:17:11] Speaker 03:
So for example, the cases that the plaintiff cite about, you know, the Bensonville case where the fee will go in effect in 13 years.

[00:17:18] Speaker 03:
The court was clear that that would go into effect unless the court acted, unless there was some new intervening effect or action that would make it so it wouldn't go into effect.

[00:17:28] Speaker 03:
Here we have sort of speculation that sometime in the future third parties will actively do something.

[00:17:34] Speaker 03:
And I think the temporal distance just adds to the speculation of what will be the context on the ground in 2032.

[00:17:42] Speaker 03:
And so it's an additional layer of speculation, additional uncertainty,

[00:17:46] Speaker 03:
additional indication that, you know, there may never actually be a concrete injury, a concrete conflict caused by the proclamation on these specific plaintiffs.

[00:17:55] Speaker 01:
So, counsel, question on that.

[00:17:57] Speaker 01:
If I recall correctly, there's no allegation in the complaint that, for example, there was an options contract.

[00:18:03] Speaker 01:
For example, let's say there was an options contract the state had negotiated that started in 2033 and continued for 10 years.

[00:18:10] Speaker 03:
Right.

[00:18:11] Speaker 01:
There's no allegation like that in this case.

[00:18:13] Speaker 03:
No, there's not.

[00:18:14] Speaker 03:
There's some speculation and plaintiffs themselves say there's a chance there might be new mining claims at that time.

[00:18:19] Speaker 01:
There's always a chance.

[00:18:22] Speaker 01:
Dumb and dumber.

[00:18:22] Speaker 01:
But I mean, in terms of an actual contract or some economic interest that was voided

[00:18:29] Speaker 01:
by this proclamation by the president, we don't have a contract we can point to that was struck down.

[00:18:34] Speaker 01:
We don't.

[00:18:34] Speaker 03:
And I think we made note of this in our brief that, again, the proclamation preserves those valid existing rights.

[00:18:41] Speaker 03:
And since the proclamation has been issued, there was a mining claim, a valid existing right that has been developed and is now an active mine there that the local governments could obtain revenue from if they wanted to.

[00:18:53] Speaker 03:
That hasn't been caused to cease because of the proclamation itself.

[00:18:57] Speaker 03:
And then I do want to just quickly address the Havens case and just the diversion of resources argument.

[00:19:08] Speaker 03:
So in Hippocratic medicine, the Supreme Court was very clear that Havens was an unusual case, that it was declining to extend Havens beyond that unique context.

[00:19:18] Speaker 03:
And I think to just point to the facts here, it's very clear that

[00:19:24] Speaker 03:
Appellants are asking for an extension of Havens beyond its narrow context, partly because there's no case that they've identified where

[00:19:33] Speaker 03:
a government entity or local governments have successfully alleged a diversion of resources to create their standing based on some government action.

[00:19:41] Speaker 03:
That's an extension there.

[00:19:43] Speaker 03:
They're also not alleging any sort of interference with their core function.

[00:19:48] Speaker 03:
Instead, they're alleging that they might not need to voluntarily change the content of what they're doing, voluntarily respond and coordinate with the federal government based on the proclamation itself.

[00:19:59] Speaker 03:
And so all of that would just be an extension of Havens at the Supreme Court.

[00:20:04] Speaker 03:
It was very clear that that should not occur.

[00:20:07] Speaker 03:
And just to step back a little bit again, the Supreme Court in US versus Texas, this court in Washington versus the Food and Drug Administration has made clear that in a specific context where there are local governments or state governments in those contexts, but here I think local government is applicable too.

[00:20:25] Speaker 03:
where the governments are challenging some federal actions' indirect effect on their revenue, on their taxes, there must be some sort of more concrete connection between the federal action and the loss of revenue.

[00:20:37] Speaker 05:
Do you think we need to wait for Arizona Alliance to come out on the en banc court before we rule on this?

[00:20:43] Speaker 03:
I don't think so, because I think, again, the district court was relying on Hippocratic Medicine, which is binding to the pre-court precedent.

[00:20:51] Speaker 03:
And I don't think that this court... I thought we were on de novo review, and it didn't matter.

[00:20:54] Speaker 03:
Well, I think we are, but I point to the appellant's point that the district court relied too heavily on the now vacated opinion.

[00:21:02] Speaker 03:
But again, it's binding precedent on this court.

[00:21:05] Speaker 03:
I don't think this is a close question that this court would need to delineate the clear standard post-Hippocratic medicine for havens types cases, because this is a new context that I don't think really requires that sort of granular analysis.

[00:21:23] Speaker 03:
And so if there are no further questions from the court, my part.

[00:21:27] Speaker 03:
Thank you, Your Honor.

[00:21:27] Speaker 05:
Thank you.

[00:21:35] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:21:37] Speaker 00:
Alexander Samuels on behalf of the state of Arizona.

[00:21:41] Speaker 00:
I recognize that the different plaintiffs here articulate slightly different types of harms, but one thing I want to make sure doesn't get lost

[00:21:48] Speaker 00:
is the unique types of harms that the legislature has attempted to assert here in its attempt to manufacture standing.

[00:21:54] Speaker 00:
And I bring it up not only because of the impact on this case, but because of the potential impact on other cases if those novel theories were accepted.

[00:22:01] Speaker 00:
In trying to manufacture standing here, the legislature proffers theories that I think would open the courthouse doors to a whole new group of different types of cases.

[00:22:12] Speaker 00:
And in particular, those cases are very likely to be politically charged in exactly the types of cases.

[00:22:17] Speaker 00:
where courts like this one are understandably skeptical of expanding the strict requirements of Article III standing.

[00:22:24] Speaker 00:
At bottom, legislative standing is a rare thing.

[00:22:27] Speaker 00:
It requires a legislature to articulate that a power has been taken away or that a specific action has been nullified.

[00:22:34] Speaker 00:
And the legislature doesn't get anywhere close to articulating those things here.

[00:22:37] Speaker 05:
So is there any legal basis under Arizona law that would allow the treasurer of the state to file a lawsuit to redress

[00:22:46] Speaker 05:
a harm suffered by the state of Arizona?

[00:22:49] Speaker 00:
No, Your Honor.

[00:22:50] Speaker 00:
I mean, Arizona law is clear, and this is 41193 in the Arizona revised statutes, that it is the attorney general who represents the state here in federal court.

[00:23:02] Speaker 00:
And it's not the legislature, it's not the treasurer, it is the attorney general.

[00:23:06] Speaker 04:
Now, state agencies... But sorry, maybe I misunderstood Judge Callahan's question, but I thought she was asking could anyone sue if the state was losing revenue.

[00:23:13] Speaker 04:
Is your answer that the attorney general could?

[00:23:15] Speaker 00:
Oh yes, I mean certainly if the state is being harmed, the state can sue.

[00:23:18] Speaker 00:
I think that's a pretty easy question to answer, but the question is who can sue on behalf of the state?

[00:23:24] Speaker 00:
The attorney general represents the state in those cases.

[00:23:27] Speaker 00:
You also might have cases where state agencies or state actors are injured themselves and can sue in their own right.

[00:23:33] Speaker 00:
So for example here, the state land department is directly impacted and the legislature I think is quite clear about the fact that they perceive

[00:23:41] Speaker 00:
harms to the state land department, and that underlies a lot of their claims.

[00:23:44] Speaker 00:
But that means the state land department could perhaps come and sue on behalf of themselves, not that the legislature can repackage those harms.

[00:23:52] Speaker 00:
And frankly, they're, I think, pretty transparent about that.

[00:23:54] Speaker 00:
If you look at, this is subsection H of paragraph 191 of their complaint, they say, the administration charge and control of state land is vested in the state land department.

[00:24:04] Speaker 00:
However, there is much reason to believe that the department will not seek to stop the unlawful proclamation.

[00:24:09] Speaker 00:
Well, I mean, they're right about that.

[00:24:11] Speaker 00:
The State Land Department is not seeking to stop the unlawful proclamation.

[00:24:13] Speaker 00:
Indeed, the state and the governor, who oversees the executive branch, are here telling you that they don't perceive there to be harm here.

[00:24:20] Speaker 05:
So I think the appellants rely heavily on a theory that the proclamation interferes with their ability to manage and dispose of state trust land.

[00:24:30] Speaker 05:
As the state of Arizona, what is your view as to how the proclamation affects the state trust land at issue here?

[00:24:39] Speaker 00:
And I think that ties into just what I was getting at, which is both the state here and the governor here have intervened on the other side of the V and are here telling you that they don't perceive the harms that the legislature perceives or says that they perceive in their complaint.

[00:24:55] Speaker 00:
I mean, certainly, could there be some impacts on state trust land here?

[00:24:58] Speaker 00:
I'm sure there could be.

[00:25:00] Speaker 00:
Some of those impacts could be positive, quite frankly.

[00:25:03] Speaker 00:
You know, one of the other plaintiffs below, the Heaton plaintiff who chose not to appeal, talked about how he was worried there might be increased tourism in the area.

[00:25:11] Speaker 00:
That may increase the value of some state trust land.

[00:25:13] Speaker 00:
I mean, the picture that the plaintiffs paint here, it's just much more complicated than that.

[00:25:19] Speaker 00:
And the state and the governor are here telling you that they don't perceive the harms that the legislature says that they perceive.

[00:25:25] Speaker 00:
Bottom line for your purposes,

[00:25:27] Speaker 00:
is that those just aren't the legislature's harms to allege.

[00:25:31] Speaker 00:
The legislature can only allege certain harms to themselves, and that's not the type of harm they've alleged here.

[00:25:37] Speaker 00:
I do want to also touch on the other plaintiffs here, because while I think the legislature is really important, I recognize some of the questions here have gone to some of the other plaintiffs, like the potential tax loss that the county, the cities allege.

[00:25:49] Speaker 00:
I do think it is speculation piled on top of speculation.

[00:25:52] Speaker 00:
It's certainly nowhere close to certainly impending, which is the standard the U.S.

[00:25:56] Speaker 00:
Supreme Court has imposed.

[00:25:58] Speaker 00:
I would encourage the court to go look at the Grand Canyon Trust case, which details the one mine in these areas that actually has operated at times.

[00:26:08] Speaker 00:
And that's because their rights accrued at a time where they actually have retained the right to operate.

[00:26:14] Speaker 00:
And as it's detailed in that Grand Canyon Trust case, they say, you know, things got rolling there in the 80s, but activity ceased in 1992 because uranium prices dropped.

[00:26:24] Speaker 00:
Now, interest, you know, that case details, interest in the mid-2000s started to spike again because uranium prices started to spike again.

[00:26:31] Speaker 00:
But, you know, the 21 years of history that we cited here, they didn't pick 21 years at random.

[00:26:37] Speaker 00:
It's that that's when uranium prices started to spike again.

[00:26:40] Speaker 00:
And in the decade plus previous to that, you had someone who could have been doing uranium mining in the area and choosing not to.

[00:26:46] Speaker 00:
And you may very well have companies making those exact types of choices in 2032.

[00:26:50] Speaker 00:
There's just no way for a court sitting here now to know.

[00:26:54] Speaker 05:
So your time is up, but there was a little time left over from how much time was left over?

[00:27:02] Speaker 04:
I'm happy you used 37 seconds.

[00:27:04] Speaker 05:
Exactly.

[00:27:04] Speaker 05:
You were spot on.

[00:27:05] Speaker 05:
You're 37 seconds over and you used the other 30 seconds.

[00:27:09] Speaker 05:
So that's amazing.

[00:27:11] Speaker 05:
Unless my colleagues have any questions.

[00:27:14] Speaker 00:
Thank you.

[00:27:15] Speaker 05:
Thank you.

[00:27:22] Speaker 02:
Yes, Justin Smith again for the appellants.

[00:27:26] Speaker 02:
I'd like to talk and begin about speculation and the role of third parties.

[00:27:31] Speaker 02:
So we cited in our brief to places where the federal government in the state of Arizona have both said that if there's a mining ban in this area will cost.

[00:27:40] Speaker 02:
you know, $180 million in revenue to the state and local governments.

[00:27:44] Speaker 02:
That's page five of the amicus brief that the state of Arizona joined in the National Mining Association case before this court in April of 2015.

[00:27:51] Speaker 02:
That brief relies on five different tables put in the final environmental impact statement produced by the federal government.

[00:27:59] Speaker 02:
And the federal government made admissions in the Yount v. Salazar case in document 84 that there would be harm to Mojave County in the form of reduced tax revenue.

[00:28:09] Speaker 02:
Local governments have a proprietary interest in that tax revenue.

[00:28:12] Speaker 02:
They don't need to demonstrate an options contract that would take place after 2032 because the city of Sausalito shows that there's a proprietary interest that the cities and counties can protect in the form of the lost tax revenue.

[00:28:28] Speaker 02:
The Douglas County case also talked about how there's an interest that counties have and how neighboring federal land is managed.

[00:28:35] Speaker 02:
The third parties before the court was an issue

[00:28:38] Speaker 02:
in the diamond alternative energy case.

[00:28:40] Speaker 02:
Again, as we discussed earlier, it was the fuel producers that brought that, and they're actually industry that intervened on the side of EPA in that case.

[00:28:47] Speaker 02:
And the theory was,

[00:28:48] Speaker 02:
The electric vehicle market has changed such that even with or without this regulation that people will still be choosing to buy electric vehicles and there won't be more gasoline produced if this regulation is removed.

[00:29:00] Speaker 02:
And it was a redressability argument similar to what we hear here.

[00:29:03] Speaker 02:
But the court rejected that because they said the whole point of having a market affecting regulation is to in fact affect that market.

[00:29:09] Speaker 02:
And you can presume and operate as a court with removing that market regulation will remove the impact on the market.

[00:29:17] Speaker 02:
And so that analysis from Diamond Alternative Energy directly applies here to say that... That case was immediate though, right?

[00:29:23] Speaker 04:
There wasn't this, we have to think about what might happen many years in the future.

[00:29:28] Speaker 02:
And like I said, Justice Jackson talks about how the data in that case was based on like 2011 studies.

[00:29:34] Speaker 02:
And I believe she also made the argument that there was a different regulation that California had put in place that also might have some impact.

[00:29:42] Speaker 02:
And yet the court said that the whole reason the government is defending that regulation is because they think it will have some effect.

[00:29:49] Speaker 02:
And here, DOJ and the state are defending this proclamation.

[00:29:52] Speaker 02:
It was put in place because it was anticipated that it would be needed, that it would have some effect in 2032.

[00:29:57] Speaker 04:
One of the things the state just said is there could be increased tourism.

[00:30:02] Speaker 04:
How do we know that the county, the local governments will lose revenue instead of gaining revenue?

[00:30:07] Speaker 02:
So the court doesn't have to get into that type of analysis.

[00:30:13] Speaker 02:
That's not part of the standing.

[00:30:14] Speaker 02:
The city of Oakland case from 2015, there was a medical marijuana dispensary that was being shut down.

[00:30:20] Speaker 02:
The federal government made that exact same argument that said, well, sales are going to be dispersed throughout the city of Oakland, so you're not going to actually lose revenue.

[00:30:27] Speaker 02:
And the court said, you don't get into that analysis.

[00:30:29] Speaker 02:
You look at here, you have a dispensary that's being shut down, and the city of Oakland could show that there was tax revenue that would be lost from that dispensary, and therefore standing applied.

[00:30:38] Speaker 02:
And that same reasoning applies here.

[00:30:41] Speaker 02:
In the remaining seconds, I'd just like to point out there is an issue with the incorrect pleading standard that was applied because the court faulted the appellants for not updating the economic projections.

[00:30:51] Speaker 02:
That's at 1ER24.

[00:30:53] Speaker 04:
Again, though, because we're on de novo review, isn't our job just to look at the complaint and see if it has standing and not worry about what the district court said?

[00:31:01] Speaker 02:
And I think that's exactly right, Judge Friedland, that that de novo review would do that.

[00:31:06] Speaker 02:
I think this is just an example of how the court should approach that de novo review and see that the economic projections that the appellants alleged in paragraph 181 of 29 billion and in the affidavits that we attached in exhibit A and B, paragraphs 27 and 36 of exhibit A and paragraph 7 of exhibit B, provide that evidence that was overlooked by the district court and that this court should review at the de novo stage.

[00:31:32] Speaker 05:
Any additional questions?

[00:31:33] Speaker 05:
All right.

[00:31:34] Speaker 05:
This matter will stand submitted.

[00:31:36] Speaker 05:
Thank you all parties for your helpful argument in this matter.