[00:00:43] Speaker 03: Our final case for argument this morning is Perkins against Department of Agriculture. [00:00:48] Speaker 03: Ms. [00:00:48] Speaker 03: Betancourt. [00:00:50] Speaker 00: Good morning, your honors. [00:00:52] Speaker 00: May it please the court. [00:00:53] Speaker 00: I am Danielle Betancourt, and I'm here on behalf of the appellant, Ms. [00:00:56] Speaker 00: Silkie Perkins. [00:00:58] Speaker 00: Here we are on an appeal on a case involving the United States Forest Service cancellation of her 2016 term grazing permit for alleged unauthorized grazing of livestock on federal lands outside her terms of her permit. [00:01:13] Speaker 00: Before I get into the meat of some of that argument, I think one of the issues that has to be addressed first and what was raised by the appellees in this case was whether in fact this case has now become moot and whether this court has jurisdiction because the terms of the permit have expired dated December 31st of 2025. [00:01:35] Speaker 00: As an initial argument, we have raised that we believe that tenure term permit should have been going on into this year and not have concluded until December of 2026. [00:01:48] Speaker 00: We do understand that in the actual permit itself, the date does state December 31st, 2025. [00:01:55] Speaker 00: However, by statute and regulations at 43 U.S. [00:01:59] Speaker 00: Code Section 1752A, it does state that grazing permits shall be for a term of 10 years. [00:02:06] Speaker 00: The same type of language is in the regulations at 36 CFR. [00:02:10] Speaker 02: And so you think that that gives you an additional couple of months because it was signed in what? [00:02:14] Speaker 02: It was signed in December or was it April? [00:02:17] Speaker 00: The permit from 2016 was signed in December of 2016, December 20th, 2016. [00:02:25] Speaker 02: And so you think that she gets until that date? [00:02:30] Speaker 00: Correct. [00:02:31] Speaker 00: Ten years later, 2026, in terms of a 10-year permit. [00:02:35] Speaker 02: As I read the regulations, it looks like the regulations contemplate that even if a permit has been terminated by time, that if the Forest Service hasn't gotten around to renewing it, that there is a presumption of continuation until the Forest Service completes the NEPA, puts the burden on the Forest Service to get that right. [00:02:57] Speaker 02: Why isn't that the stronger argument for your mootness rather than [00:03:01] Speaker 02: She's that the Forest Service has somehow made a scrivener's error and that you're entitled to additional time. [00:03:07] Speaker 00: Your honor, I do believe that is our stronger argument. [00:03:10] Speaker 00: And we did make that in briefing as well. [00:03:12] Speaker 00: I just wanted to hit this initial one first to put the point to the fact that she believed that it didn't expire till 2026. [00:03:19] Speaker 00: And it kind of was consistent with the fact that her prior permit wouldn't have expired before she signed this 2016 permit either. [00:03:30] Speaker 03: Do you know, I mean, I don't, this may not be in the, I imagine this is not in the record, but have they given the permit to somebody else as far as you know? [00:03:39] Speaker 00: It is not in the record, as far as I know, that they have not. [00:03:42] Speaker 00: But I have not seen anything indicating otherwise. [00:03:45] Speaker 00: I think they haven't let us know where. [00:03:50] Speaker 03: And I take it under, I guess it's 1752 C1, if the permit had simply expired rather than having been revoked as it was here, you would have priority for renewal. [00:04:07] Speaker 03: Is that right? [00:04:08] Speaker 00: That's correct. [00:04:08] Speaker 00: So our other argument aside from whether we go by the term and the date written in the actual permit is the fact that this court can still grant some type of relief to Ms. [00:04:18] Speaker 00: Perkins. [00:04:20] Speaker 00: Whether it is that the permit had expired in 2025, the fact is that there is a statutory right to renewal and also first priority for that renewal for a current permittee under the statute. [00:04:34] Speaker 00: As well as the fact that, as your honor was indicating, part of that section also allows for your prior terms and conditions to continue on while an environmental assessment is completed through the process to get your new permit, depending on whether new terms and conditions are issued or whether you remain under the same terms and conditions. [00:04:56] Speaker 00: So our argument is obviously the fact that this case isn't moot. [00:05:01] Speaker 00: You can still get effective relief if you determine that the cancellation decision was arbitrary and capricious. [00:05:06] Speaker 00: You can set it aside and that would wipe the slate clean for Ms. [00:05:09] Speaker 00: Perkins and she would fall within that requirement under 43 U.S. [00:05:15] Speaker 00: Code 1752 that the lands are available for grazing, that she's in compliance with the permit and terms and conditions and the rules and regulations and then all she would have to do is accept the new terms for the permit in order to be given first priority for receipt of that grazing permit. [00:05:35] Speaker 00: I also wanted just to address some of the additional case law that was cited out in the Tenth Circuit regarding grazing permit expirations becoming moot. [00:05:46] Speaker 00: This would be the McKean for US Forest Service as well as Wallace v. Bureau of Land Management. [00:05:52] Speaker 00: I think they're distinguishable from our case on the basis that while those grazing permits had expired, the difference was in fact that the [00:06:02] Speaker 00: permittees had received new grazing permits were under additional terms and conditions as opposed to in our case where Ms. [00:06:09] Speaker 00: Perkins currently does not qualify for a new permit due to it being cancelled for non-compliance. [00:06:22] Speaker 00: After addressing the mootness, I would like to direct to the rest of our argument in terms of why this decision should be set aside as arbitrary and capricious and not based on a rational explanation. [00:06:34] Speaker 00: I think in the large part, both the Forest Service decision as well as the lower court's decision focused a lot on the alleged unauthorized grazing of Mr. Jerry Voshnik, who is Ms. [00:06:45] Speaker 00: Perkins' son. [00:06:47] Speaker 00: He has his own herd of cattle. [00:06:49] Speaker 00: He operates his own business separate from Miss Perkins. [00:06:53] Speaker 00: However, in a few of the past seasons, in terms of when they were grazing, it's been a few years, but back in 2021 specifically, he was allowed to graze under Miss Perkins permit through an annual operating instruction. [00:07:09] Speaker 00: And that authorization was temporary in the sense that it only allowed for two months. [00:07:16] Speaker 00: Um, per the terms of the permit of miss Perkins, she's only allowed to let livestock owned by her to graze on her allotment, um, unless otherwise approved by the forest service. [00:07:27] Speaker 00: And then she's further required to make sure anything, any couch is owned or controlled, um, stay out of unpermitted areas. [00:07:34] Speaker 00: However, [00:07:36] Speaker 00: The US Forest Service is arguing that temporary authorization of allowing to have his cattle under her permit to help her with the grazing operations that now somehow he was attached to her permit for the entire grazing year, so the entire 12 months. [00:07:53] Speaker 00: I don't find that there's anything in the statutes regulations or otherwise that would allow for this to occur. [00:07:58] Speaker 00: More specifically, annual operating instructions aren't even statutory or regulatory required. [00:08:04] Speaker 00: They are something that are done to help allow for temporary changes in the number and kind of class of livestock and your grazing management, as well as seasons of use, and also to help implement your allotment management plan and your actual grazing permit. [00:08:20] Speaker 00: But nothing in any of that type of, whether it's the Forest Service handbooks or any of regulations or otherwise, insinuate that an AOI has some broader impact on your permit than that. [00:08:34] Speaker 03: Even if we disregard for a moment all of his cattle and say that they're not attributable to Ms. [00:08:41] Speaker 03: Perkins, the agency pointed to some evidence that her cattle were involved, both with the, and I'm thinking specifically of the photographs of some of the cattle at Verde River and then the visitor logs from the cement plant that suggested that she was coming and collecting, [00:09:02] Speaker 03: collecting them. [00:09:03] Speaker 03: So what, maybe you can address those pieces of evidence? [00:09:08] Speaker 00: Yeah, I think one of the major issues was the fact that that was never raised even before we got in front of the administrative appellate court. [00:09:16] Speaker 00: It was raised during the oral argument at that level, that they did capture photographs or allegedly photographs of Ms. [00:09:26] Speaker 00: Perkins' cattle. [00:09:27] Speaker 00: She has long taken the position that her cattle were not with Jerry's cattle at the time. [00:09:33] Speaker 00: And that the two that were captured on some game cameras, that she had gifted them to Jerry back when he was younger. [00:09:42] Speaker 00: And he just never rebranded them. [00:09:46] Speaker 00: I don't know how else to raise the argument, aside from what Miss Perkins is claiming. [00:09:52] Speaker 02: How do you address the evidence at the cement plant? [00:09:56] Speaker 02: The cement plant calls and says your cows are over here, some of them appear to be Jerry's, some of them appear to be hers, and her names show up in the logs, and some of her people show up in the logs. [00:10:09] Speaker 02: And so how do we address that? [00:10:12] Speaker 00: I think we address it first in the fact that generally with the logs themselves, one, Ms. [00:10:18] Speaker 00: Perkins has denied that the cement plant was calling or telling her cattle were in their private property. [00:10:24] Speaker 00: Her cattle were in completely different location, private property not even close to the cement plant property. [00:10:35] Speaker 02: And you're able to prove that all of her cattle, that all of her herd was there? [00:10:40] Speaker 02: That none of her herd had wandered over here? [00:10:43] Speaker 00: That's correct. [00:10:44] Speaker 02: The people of the cement plant said they called her and that somebody from her group, either her personally or somebody else, would come over and pick up the cattle. [00:10:53] Speaker 00: Ms. [00:10:53] Speaker 00: Perkins doesn't have any employees, Your Honor. [00:10:56] Speaker 00: The only one that has helped her in the past is Mr. Vashnik, her son, but he does have his own herd and his own operations, and they're not a part of her operations. [00:11:05] Speaker 00: They're completely separate and distinct. [00:11:08] Speaker 00: What we have in the record is earlier when they talked to somebody from the cement plant factory was that they had called Jerry, not that they were calling Silky. [00:11:18] Speaker 00: When he was then interviewed by a law enforcement officer with the Forest Service [00:11:23] Speaker 00: They stated that they called both when issues arose. [00:11:26] Speaker 00: But Ms. [00:11:27] Speaker 00: Perkins has indicated she never received a phone call. [00:11:29] Speaker 02: And what did the logs say? [00:11:31] Speaker 00: The logs identify various, they say Perkins or Perkins hands or Cruz or Mr. Wozniak or his father who is not married to Ms. [00:11:43] Speaker 00: Perkins no any longer or hasn't been at that time. [00:11:49] Speaker 00: I don't they don't give you any more information than that and that is not anybody that is not Them signing in it's somebody else who's writing that information down They're not the ones who physically sign them in even the vice president at the Phoenix cement plant said That that doesn't clearly show that miss Perkins was actually the person who was going And we're there because they're trying the case We're here on a pellet review under Not arbitration [00:12:17] Speaker 01: arbitration is on our mind, capricious, arbitrary and capricious standard. [00:12:24] Speaker 01: And you can contest the factual findings and you say, well, they shouldn't have, you know, the cement plant notations were incorrect. [00:12:33] Speaker 01: But it was evidence that it seems to me it was not irrational for someone to conclude that there was cattle appropriately attributed to her [00:12:46] Speaker 01: found raising where they weren't supposed to be. [00:12:48] Speaker 01: That was the basis for the action. [00:12:53] Speaker 01: At this stage of the game to say, well, that decision was wrong because she didn't have any hired hands or somebody at the cement plant must have made an erroneous understanding or noted something down wrong. [00:13:09] Speaker 01: I mean, that really is kind of [00:13:13] Speaker 01: I think we're missing the point for what we're doing here today, I think. [00:13:16] Speaker 01: Where am I wrong about that? [00:13:20] Speaker 00: I think what we're arguing, Your Honor, is not just the facts alone, is the fact that there is not substantial evidence in the record or a reasonable explanation. [00:13:31] Speaker 01: But to reach that conclusion, we have to discount the evidence that was cited and has to get to the point of deciding, well, the cement plant notation was incorrect. [00:13:42] Speaker 01: That's something we're in a position to do. [00:13:45] Speaker 01: We're not the trier of fact. [00:13:49] Speaker 01: So I'm sympathetic toward the situation, but I don't know that this is the place where we can take up the kind of questions you'd like to take up. [00:14:00] Speaker 00: And I appreciate that, Your Honor. [00:14:01] Speaker 00: And I would also argue on the Administrative Procedure Act at all levels, it's a de novo review where you can look at everything, including the facts in the case. [00:14:13] Speaker 01: Well, we can look at everything, but the standard is not the novo. [00:14:18] Speaker 01: We're not the decider in the first instance. [00:14:20] Speaker 01: We're deciding based on a pretty deferential standard. [00:14:29] Speaker 03: Did you want to reserve the time? [00:14:31] Speaker 00: Yes, can I reserve the remaining time? [00:14:32] Speaker 00: Thank you. [00:14:39] Speaker 03: Mr. Caps. [00:14:42] Speaker 04: Good morning. [00:14:44] Speaker 04: May it please the court. [00:14:45] Speaker 04: My name is Noel Capsen, NAUSA in Phoenix. [00:14:48] Speaker 04: I'll be presenting on behalf of the government. [00:14:51] Speaker 04: You'll have to speak up just a little bit, counsel, so we can hear you. [00:14:54] Speaker 04: Yes, your honor. [00:14:55] Speaker 04: This case and appeal became moot upon the expiration of the subject term grazing permit by its plain terms on December 31st, 2025. [00:15:05] Speaker 04: The requested revocation and enjoyment of the cancellation decision [00:15:13] Speaker 04: would afford no effective relief because Ms. [00:15:16] Speaker 04: Perkins' right to graze expired when the permit expired. [00:15:22] Speaker 04: There is no present live controversy. [00:15:25] Speaker 04: The arguments raised against mootness are both procedurally and substantively deficient. [00:15:34] Speaker 04: Procedurally they're deficient because each states a new claim [00:15:39] Speaker 04: that was not raised before and exhausted below. [00:15:43] Speaker 04: For example, the alleged Scrivener's error is a new claim seeking to modify the permit, a contract to add an additional year to the expiration of the permit, the permit term that is 180 degrees from the express terms of the permit itself, which facially stated December 31st, 2025. [00:16:11] Speaker 01: I'm not sure that's something that, I mean, you can call it a scrivener's error, but basically we've got this agreement. [00:16:19] Speaker 01: And I recently entered into a lease agreement that actually had the wrong unit number down. [00:16:23] Speaker 01: And we all understood it was the wrong unit number. [00:16:26] Speaker 01: And so I think the question here is, okay, we've got this agreement. [00:16:30] Speaker 01: Is that a plausible interpretation, whether it is or it isn't and so forth? [00:16:35] Speaker 01: It's something on the table that suggests that maybe [00:16:39] Speaker 01: This isn't an entirely closed controversy. [00:16:44] Speaker 04: The agency's position is that there is no ambiguity here. [00:16:49] Speaker 04: Term grazing permits are issued, shall be issued for a term of 10 years, not more. [00:16:56] Speaker 04: The argument that would put it out to the end of this year would violate statute and regulation by making the term of the permit in excess of 10 years. [00:17:06] Speaker 01: That's an argument you can make. [00:17:09] Speaker 01: I think that's a good point. [00:17:10] Speaker 01: I think defining the. [00:17:12] Speaker 01: Controversy is moot right from the get-go I have more difficulty with and we have the additional factor that was discussed when your colleague was at the. [00:17:22] Speaker 01: What turn is to whether there's an understanding or an expectation that. [00:17:26] Speaker 01: If if you've had a permit. [00:17:38] Speaker 01: And why wouldn't that be a basis to make this a law of controversy? [00:17:42] Speaker 04: Substantively, and with all due respect to my colleague, agency's position is that view is wrong. [00:17:50] Speaker 04: By statute and regulation, that right of an existing permittee to first priority for issuance of a new permit is conditional. [00:18:00] Speaker 04: It's not automatic. [00:18:02] Speaker 04: It's conditional upon that permittee [00:18:04] Speaker 04: being in full compliance with all terms and conditions. [00:18:08] Speaker 02: But isn't that a little circular for us, counsel? [00:18:12] Speaker 02: We're here today to try to figure out whether the determination that she was not in full compliance with the rules and regulations is arbitrary and capricious. [00:18:21] Speaker 02: And that's a very narrow standard. [00:18:23] Speaker 02: It is, but then we should be arguing about whether it's arbitrary and capricious, not arguing about whether it's moot, because the whole thing feels quite circular. [00:18:32] Speaker 04: Bottom line as to mootness, [00:18:34] Speaker 04: the agency's position is set forth in its briefing. [00:18:38] Speaker 04: I would also add that to the extent that the court is troubled by the ambiguity, to the extent that the court views there's ambiguity around either of the issues that are raised for it against mootness, that that would be frankly all the more reason to dismiss on grounds of mootness because we're here on an incomplete record. [00:19:02] Speaker 03: to complete the point on the 1752C1 priority. [00:19:10] Speaker 03: Is there any reason that she wouldn't be entitled to that other than the determination by the agency that is under review here? [00:19:21] Speaker 04: Procedurally, if the cancellation decision were revoked, it does not undo the past noncompliance or historical noncompliance. [00:19:29] Speaker 04: She would have to submit a new permit [00:19:32] Speaker 04: And in that new application, she would have to submit a new application. [00:19:37] Speaker 04: And in that application process, agency practice is that the reviewing officer would look at among a lot of different factors, including compliance history. [00:19:48] Speaker 04: And while compliance history is not determinative, if the officer reviewing that application for a new permit [00:19:56] Speaker 04: that the permit compliance history was unsatisfactory by agency practice, that new permit can't be issued. [00:20:07] Speaker 03: Is there a reasonable possibility [00:20:09] Speaker 03: that the officer making that decision would reach a different conclusion in the case of somebody whose permit had been revoked. [00:20:20] Speaker 03: If we were to, because of the action at issue here, then someone who's hadn't but had whatever other things in the past there are. [00:20:31] Speaker 03: Might that make a difference? [00:20:34] Speaker 04: I'm not suggesting any predetermination or [00:20:39] Speaker 04: forecasting by any means? [00:20:40] Speaker 03: Well, that's fair, but the problem is that if there is some realistic possibility that the decision in this case would make a difference to what the party's future rights are, then it's not moot, right? [00:20:58] Speaker 03: And I'm not – it seems like you're – I mean, I appreciate, like, [00:21:03] Speaker 03: that you're being careful in not saying what the agency would or would not do. [00:21:07] Speaker 03: But if you can't tell us that no matter what happens here, she's not getting another permit, then it seems like this case might make a difference. [00:21:18] Speaker 03: And then that means it's not moot. [00:21:21] Speaker 01: All I'm suggesting. [00:21:24] Speaker 04: Your honor, yes. [00:21:25] Speaker 04: Moving on to the merits. [00:21:33] Speaker 04: The district court's judgment should be affirmed because it properly found that the cancellation decision was lawful and based upon substantial evidence. [00:21:46] Speaker 04: With respect to that part of the cancellation decision focusing on the prior Verde River Corridor violations, the cancellation decision was the culmination of a years long effort to work with the permittee. [00:22:02] Speaker 04: to get her into compliance and get her to stay in compliance through progressive permit actions. [00:22:10] Speaker 04: Unfortunately, that simply did not happen. [00:22:13] Speaker 04: And at the relevant time, plaintiff was already under a 25% suspension decision as of March 31st, 2021 because of a frequent recurring pattern [00:22:28] Speaker 04: of non-compliance by having cattle under her permit being found in the Verde River quarter. [00:22:35] Speaker 04: This is something that repeats itself with respect to the subject notice of non-compliance leading to the subject cancellation decision, when again on multiple occasions, although by under the permit in the annual operating instructions, she was not to have any cattle on Forest Service lands after April 30th of 2021, [00:22:57] Speaker 04: her cattle were documented or otherwise determined to be based upon substantial evidence on National Forest Service administered property beginning on or about May 18th, 2021 through middle of December of 2021. [00:23:10] Speaker 04: And with respect to the Jerome allotment, which had been closed to grazing since 2008, there was strong circumstantial evidence that plaintiff [00:23:26] Speaker 04: and cattle under her permit were involved with substantial unauthorized grazing on the northern portion of the Jerome allotment sometime between mid-April of 2021 and mid-September of 2021. [00:23:42] Speaker 04: With respect to the types of evidence supporting the underlying decision, I would [00:23:51] Speaker 04: point the court to the responsive statement to the appeal and the oral presentation outline that are part of the record, 2ER 47 to 87, and also 2ER 158 to 189. [00:24:05] Speaker 04: I would also point to the court that when the notice of noncompliance was issued in February of 2022, [00:24:18] Speaker 04: Ms. [00:24:19] Speaker 04: Perkins was given an opportunity to provide substantive response. [00:24:26] Speaker 04: And she did, but it was not substantive. [00:24:29] Speaker 04: It was incomplete. [00:24:30] Speaker 04: And there were two, it came in two parts. [00:24:32] Speaker 04: It came on March 3rd and it came on March 17th. [00:24:35] Speaker 04: And for the remaining approximately six months up until the time the cancellation decision was issued on August 8th of 2022, no additional information [00:24:47] Speaker 04: was provided for the agency's consideration. [00:24:50] Speaker 04: So what the agency had in front of it was the evidence of the substantial grazing of Jerome allotment. [00:25:01] Speaker 04: It had in front of it the substantial evidence of the unauthorized grazing on the Verde River quarter, including photographs of plaintiff's cattle documented once on July 2nd [00:25:14] Speaker 04: of 2021 and a second time on November 3rd of 2021. [00:25:20] Speaker 03: She says that those were cattle that had been transferred to her son. [00:25:24] Speaker 03: So what do you say to that? [00:25:27] Speaker 04: Well, those arguments were never brought to the agency's attention. [00:25:30] Speaker 04: But during the administrative appeal process, they were, and the agency just didn't simply disregard it. [00:25:36] Speaker 04: They looked at it and made a determination that those first that's not disputed that the cattle bore her brand. [00:25:45] Speaker 04: Second, the there's a under Arizona statute. [00:25:50] Speaker 04: They're deemed to be under the ownership of the brand that they bear. [00:25:54] Speaker 04: and that the permit required expressly that the permittee immediately notify the agency if there was any change at all in the ownership status of the cattle. [00:26:06] Speaker 04: That never occurred. [00:26:07] Speaker 04: And for that reason, even were the court to accept the argument that the argument that the vaginic cattle were not under the permit, [00:26:19] Speaker 04: or in addition to that, that the plaintiff gifted these cattle at some unknown time in the past, we are still left with a significant permit violation under part two of the permit, again, requiring that the permittee immediately notify the agency of a change in brand ownership. [00:26:45] Speaker 04: So there's still noncompliance and significant noncompliance [00:26:49] Speaker 04: that led to well-documented impacts of grazing on federal property that should not have occurred and were in contravention to the expressed terms of the permit. [00:27:16] Speaker 01: I'm sure it's not in the record, but do you know what [00:27:20] Speaker 01: the land in question or how it's being used now. [00:27:24] Speaker 01: There's a new permit been issued. [00:27:26] Speaker 04: A new permit has not been issued. [00:27:32] Speaker 04: And with that, your honor, I'm happy to answer any other questions. [00:27:36] Speaker 04: There are none. [00:27:37] Speaker 04: But with the agency would respectfully request that the appeal be dismissed on witness grounds or alternatively that the judgment of the district court be affirmed. [00:27:47] Speaker 04: Thank you. [00:27:48] Speaker 04: Thank you. [00:27:53] Speaker 00: Thank you your honor I Think I would just want to follow up on a few points in terms of that One that miss Perkins didn't respond when she first received the notice of non-compliance You know, he does admit that she did respond that it but it wasn't what they wanted but quite clearly she's denied that those cattle were ever her responsibility or that [00:28:16] Speaker 00: that it was her cattle in fact doing unauthorized grazing. [00:28:19] Speaker 00: That was her response. [00:28:20] Speaker 00: Her response of not being able to give more information in regards to what was happening on the Jerome allotment next to the cement plant factory has long been the position was because she was not involved at all. [00:28:31] Speaker 00: She was not there. [00:28:32] Speaker 00: She was not [00:28:33] Speaker 00: letting her cattle be grazing on the Jerome allotment and quite frankly we believe the visitor logs aren't conclusive of that or nor do they support a reasonable explanation that that was in fact her that was was involved in those situations or that unauthorized grazing. [00:28:51] Speaker 00: My time is short. [00:28:52] Speaker 00: But the only other thing I would have to point out, too, in terms of the brand issue, case law out of Arizona also recognizes that the brand is not conclusive proof that ownership or proof thereof can be made in no other way, but that it can be made in other ways aside from just having the brand. [00:29:09] Speaker 00: With that, I would ask that this court set aside the agency's decision and fine in favor of the appellant. [00:29:14] Speaker 00: Thank you. [00:29:15] Speaker 03: Thank you, counsel. [00:29:16] Speaker 03: And we thank both counsel for their helpful arguments. [00:29:19] Speaker 03: The case is submitted, and we are adjourned.