[00:00:00] Speaker 03: That case is going to be submitted, but I am going to ask counsel for that case to both stay in case we have some more questions we want to ask at the end. [00:00:09] Speaker 03: And while people are shuffling in, we'll go ahead and call the next case, which is Dalton versus Biden, case number 23-4107. [00:00:20] Speaker 03: We'll ask counsel for the appellant to come up. [00:00:37] Speaker 03: Okay. [00:00:50] Speaker 03: Let's go ahead and move on to our next case. [00:00:55] Speaker 03: We've got a couple more people coming in, but we're gonna go ahead and get started with case number 234107. [00:01:05] Speaker 02: Thank you, Judge Carson, Harry Graver, for the Dalton plaintiffs. [00:01:08] Speaker 02: I do my best to reserve three minutes for rebuttal. [00:01:11] Speaker 02: I'm not going to pretend as if you guys have not just been talking about this for 30 minutes, so I'll just pick up where you left off. [00:01:16] Speaker 02: I want to address a handful of questions that you raised, starting with Judge Rospin, the question about cause of equity or cause of action, how it relates to ultra-various exception. [00:01:25] Speaker 02: As my friend was getting at, they really do overlap. [00:01:28] Speaker 02: And this court's analysis in Wyoming, I think, shows exactly how you do that. [00:01:33] Speaker 02: When something is ultra-vires, sovereign immunity doesn't apply because it never attaches in the first place. [00:01:39] Speaker 02: It's an individual action. [00:01:40] Speaker 02: And then you rely on equity, a court's inherent equitable powers to supply the cause of action. [00:01:45] Speaker 02: Because when a governmental actor is acting in excess of authority and directly injuring you, it's a long-standing equitable practice to prevent that. [00:01:52] Speaker 02: It's exactly what happened in McAnulty, in Youngstown, in Dames and Moore, in Armstrong, again and again and again, as this court has recognized. [00:02:00] Speaker 02: That's the distinction. [00:02:00] Speaker 02: So with ultra-vires, [00:02:02] Speaker 02: One thing that gets hard with these cases is that like the term jurisdiction itself, it gets used kind of imprecisely all different times. [00:02:09] Speaker 02: What we're talking about here is a governmental actor using power they never had authority to wield. [00:02:15] Speaker 02: And the long-standing practice there is that when you're on the receiving end of that unlawful action, sovereign immunity doesn't apply again, because the sovereign agent has gone beyond the ambit of their power. [00:02:25] Speaker 02: And equity supplies the cause of action. [00:02:28] Speaker 02: My friend brought up the APA. [00:02:32] Speaker 02: The APA was enacted. [00:02:33] Speaker 02: It's always been a complementary scheme. [00:02:35] Speaker 02: DC Circuit held this in Dart in the late 80s. [00:02:38] Speaker 02: Every federal court to address the question has agreed. [00:02:41] Speaker 02: Because Congress needs to speak very clearly when it wants to displace traditional equitable powers of the courts. [00:02:47] Speaker 02: And the bread and butter equitable power of the federal courts is ultra various review. [00:02:51] Speaker 01: Counsel, I'm sorry. [00:02:52] Speaker 01: I'm just fixated on something you said a moment ago when you said the executive was utilizing an authority they were never delegated or they did not have. [00:03:02] Speaker 01: I did not read any briefs here to argue that the president doesn't have delegated authority from Congress to declare national monuments under the Antiquities Act. [00:03:10] Speaker 01: Rather, I read your briefs to say you're charging or you're challenging the decisions within the statute, particularly subsection A, that in the exercise of that authority delegated, the president exceeded the bounds. [00:03:21] Speaker 01: Did I misconstrue your arguments? [00:03:23] Speaker 02: No, I think I want to be very precise about this. [00:03:26] Speaker 02: Because I think this gets to the point about one of the main sources of confusion, which comes to the stern phrase about which mistakes of law count. [00:03:33] Speaker 02: So the president has authority under the Antiquities Act to set aside land for, let's say, A, B, and C. Our basic contention is that he set aside land for D, E, and F. He used the Antiquities Act in a way that he was never authorized to do. [00:03:46] Speaker 02: What's clear about what's very important to sort of disentangle [00:03:49] Speaker 02: is this notion of, you know, when is someone behaving wrongly? [00:03:53] Speaker 02: That's the kind of line in cases that get picked up in Larson, I think, kind of gets wrapped around the axle along the way. [00:03:59] Speaker 02: What's key is that there's a big difference between exercising power you never had in the first place, doing something you were never authorized to do, or wielding that power in a way that violates some extrinsic source of law. [00:04:10] Speaker 02: So in Larson, the example is that you might have breached a contract, but no one disagreed that the officer at issue had the power to wield. [00:04:16] Speaker 02: So here, our point is, yes, the president has Antiquities Act power, but it's defined and enumerated. [00:04:21] Speaker 02: And just as in McAnulty, for instance, when the executive officer uses that power in a way that Congress did not authorize, it's individual will. [00:04:29] Speaker 02: You're doing something you were never allowed to do. [00:04:31] Speaker 01: Yeah, but isn't historically the check on that in congressional action? [00:04:35] Speaker 01: I mean, Congress wasn't shy when it dealt with Wyoming and Alaska subsequent to that. [00:04:39] Speaker 01: And so I think what you may hear is some struggle here on the bench is, you know, [00:04:45] Speaker 01: Where is our authority for the judiciary then to step in and say, what you just said, how the president has exercised authority, he was never delegated, when again, historically, one, courts have not said that, and two, Congress has been the other branch of government to intercede. [00:05:03] Speaker 02: So I think that, I want to be careful about the buckets in which that falls. [00:05:07] Speaker 02: I think for the exact same reasons that the DC Circuit held time and again. [00:05:11] Speaker 02: You can say that's a reviewable question. [00:05:13] Speaker 02: The president does not get to do whatever he wants for whatever reason, but the Antiquities Act and courts have nothing to say about it. [00:05:18] Speaker 02: So there's the important threshold questions about your ability to hear this case, your ability to issue a remedy. [00:05:23] Speaker 02: Then there's a question you asked before in the other case, sort of like, what makes this monument different from all other monuments? [00:05:28] Speaker 02: Congress has interceded in the past, it hasn't here, these are new, but why should this be the first case? [00:05:34] Speaker 02: I think the key point here [00:05:36] Speaker 02: is that for all the objects that we at least identify, the five that we emphasize, landscapes, regions, ecosystems, habitats, animals, the reason this case is so important is because they rest on the outermost bound of the president's conceivable Antiquities Act power. [00:05:50] Speaker 02: The key part of the objects that we identify is that if they are accepted, they render the act effectively limitless. [00:05:56] Speaker 02: That is why this case is more. [00:05:57] Speaker 02: You cannot go further than these proclamations go. [00:06:00] Speaker 02: So the reason our case is different is, is there a limit at all? [00:06:03] Speaker 02: And for federal courts to look at a federal statute and identify and define a limit, that is your bread and butter. [00:06:09] Speaker 02: That's your main job. [00:06:10] Speaker 02: And we fall very comfortable in the ultra-viraj tradition that allows for that. [00:06:14] Speaker 00: Why do your clients have a cause of action here if there is only, even in the rubric that you described, which I thought was very helpful, still a free-floating right? [00:06:28] Speaker 02: This is, I think, with a safe streets point that's important. [00:06:30] Speaker 02: We're not pressing a free-floating right. [00:06:32] Speaker 02: What was happening in Safe Streets is that, and Judge Briscoe emphasizes a lot of the surfer opinion, the plaintiffs were not directly regulated by the government program they were complaining about. [00:06:44] Speaker 02: They were seeking to use equity in this very novel and aggressive way to go upstream and unwind all of Colorado's legalization regime as conflicting with federal law because they didn't like its incidental effects. [00:06:55] Speaker 02: That's not our case at all. [00:06:56] Speaker 02: As my friend was getting at, we're pressing core private rights. [00:07:00] Speaker 02: We're in the exact same spot as the plaintiff in McAnulty or the mill owners in Youngstown. [00:07:05] Speaker 02: In Youngstown, there's no federal substantive rights under the president's war powers or under any of these statutes that could have applied. [00:07:11] Speaker 02: Those are core private rights. [00:07:12] Speaker 02: It was business interests, property interests. [00:07:15] Speaker 00: So it doesn't have to be a constitutional right like it was in Simma. [00:07:18] Speaker 02: Correct. [00:07:18] Speaker 02: And it happened to be a constitutional right, Simma, but that is definitely not necessary. [00:07:22] Speaker 02: McAnulty is a perfect example. [00:07:23] Speaker 02: This is the canonical case in Old Trivia Review. [00:07:26] Speaker 02: There you had a medical school. [00:07:27] Speaker 02: The postmaster general kind of thought it was a quack medical school and he stopped people from sending checks to it. [00:07:32] Speaker 02: They didn't have any federal substantive rights under the Lottery Act. [00:07:35] Speaker 02: They wanted their property. [00:07:36] Speaker 02: They were entitled to monetary interest. [00:07:38] Speaker 02: Same kind of pocketbook interest that our guys are pressing. [00:07:41] Speaker 02: So you can have a right, as my friend was saying, you have a core private right that is being injured by way of unlawful governmental action. [00:07:48] Speaker 02: That is traditional ultraviolence review. [00:07:51] Speaker 03: I want to bring up one point. [00:07:53] Speaker 03: So it sounded to me like your opposing counsel was suggesting that your right had to be in the property itself. [00:08:02] Speaker 03: OK? [00:08:03] Speaker 03: OK. [00:08:04] Speaker 03: And that's not what I just heard from you. [00:08:06] Speaker 03: You said a pocketbook right, which for the state [00:08:10] Speaker 03: and some of these folks is royalties, different kinds of money coming from leasing, and that type of thing. [00:08:20] Speaker 03: So, I mean, maybe that shows that you've had an injury by this, but how does that show that you have a property right in the federal lands as argued by your opposing counsel? [00:08:29] Speaker 02: So I think we were talking about slightly different things. [00:08:31] Speaker 02: I don't think you need a right in the federal land property. [00:08:34] Speaker 02: In order to have a [00:08:36] Speaker 02: injury cognizable in equity. [00:08:37] Speaker 02: And we cite, I forgot if it's in the opening of the reply, Judge Wilkinson dissent, that details this a lot, point there. [00:08:43] Speaker 02: But you need a right cognizable in equity, a traditional equitable right. [00:08:47] Speaker 02: That can come from a host of sources. [00:08:49] Speaker 02: My friend is saying it's constitutional rights, it can come from federal statute, it can come from the common law, it can come from state law. [00:08:54] Speaker 02: But a property interest, for instance, the ability to run your business, is about as traditional as it gets. [00:09:00] Speaker 02: So I don't think you need an interest in the land itself, you don't need to own the land necessarily. [00:09:03] Speaker 02: But when you've been given a permit, for instance, to work on the land, that permit becomes harder. [00:09:07] Speaker 02: That's a quintessential Article 3 injury, quintessential kind of injury. [00:09:11] Speaker 03: Let me ask you a question. [00:09:13] Speaker 03: Has anyone in this case been required to pay a fee? [00:09:18] Speaker 03: Yes. [00:09:18] Speaker 03: Under the new scheme? [00:09:20] Speaker 03: Every time that we fill out a permit, any of our guys, any of the Blue Ribbon folks, they need to pay a fee. [00:09:25] Speaker 03: I know they need to, but have they done it? [00:09:27] Speaker 03: Because as I was hearing over here on the appellee's side, they're suggesting nothing's happened yet. [00:09:34] Speaker 03: This is the old RFP that's controlling, and that as a result of this designation, nobody's paid a fee, nobody's been blocked out of their mind, nobody's had to have anything happen to them. [00:09:47] Speaker 02: And they agree with this, I think, in their declaration. [00:09:50] Speaker 02: So I don't think the government will contest this when I come up here, is that the standards for permits have gotten higher. [00:09:56] Speaker 02: Everyone agrees about that. [00:09:57] Speaker 02: We attested, the best example of this is Zev Dalton's declaration. [00:10:00] Speaker 02: With respect to his pending future and existing permit schemes, he has to now expend more administrative costs in order to comply. [00:10:08] Speaker 02: It's a lot harder to get a permit. [00:10:10] Speaker 02: Those are real out of pocket costs that are happening now. [00:10:12] Speaker 02: And there's a bunch of examples of that in the declarations. [00:10:17] Speaker 03: who has a private right, a property interest within the federal land, either paid a fee because of it, or chosen not to exercise their right because they'd have to pay the fee? [00:10:29] Speaker 03: Yes. [00:10:29] Speaker 02: Best example is with Kyle Kimmerly. [00:10:32] Speaker 02: So what happened with Kyle, and again, the government agrees with this, because of the monument designation alone, forget the management plans, because of the monument designation alone, he now needs to deal with a new and costly validity exam that's going to cost somewhere within a few hundred thousand dollars at least. [00:10:46] Speaker 02: That has deterred him from moving forward on his claims. [00:10:48] Speaker 03: And that's alleged in your complaint? [00:10:50] Speaker 02: Yes, that's in the declarations, I think, twice over. [00:10:52] Speaker 02: Are these issues preserved for us, though, in your opening brief? [00:10:57] Speaker 02: So I think absolutely in that we did not raise standing on our own, because we thought standing was straightforward and obvious. [00:11:03] Speaker 02: We raised it in the reply to respond to their argument. [00:11:06] Speaker 02: But this is a subject matter question. [00:11:07] Speaker 02: I don't think it's going to, it's not the sort of thing that we need to affirmatively argue or re-waive. [00:11:12] Speaker 01: You mentioned standing. [00:11:13] Speaker 01: How would you respond to, [00:11:16] Speaker 01: the argument that there's a lack of redressability here regarding standing. [00:11:20] Speaker 02: So I think that there's two sort of redressability questions I think at play. [00:11:25] Speaker 02: One is the old like fed court's chestnut as to whether remedy can run against the president. [00:11:29] Speaker 02: We think yes, but there's no need for this court to reach it. [00:11:32] Speaker 02: What's key, and I think the district court omitted this point, what's key is that we named all the subordinate officials implementing the proclamations. [00:11:38] Speaker 02: And Justice Scalia, just as Justice Scalia explained in Franklin, when you can join or issue any kind of remedy run against a subordinate official, that's a traditional sort of remedy in these instances when you're dealing with those implementing an executive order. [00:11:51] Speaker 01: Yeah, but for us to join the Department of the Interior, the agency heads, [00:11:58] Speaker 01: It would be so on the basis that what they are carrying out is only based upon an unlawful proclamation, right? [00:12:04] Speaker 01: Yes. [00:12:05] Speaker 01: So how effectively then do we issue a remedy to departments to say, you stop what you're doing, when the President of the United States has told them that this is what they must do, without, by virtue of that, also enjoining the President? [00:12:19] Speaker 02: It's a very important, there is a big difference between reviewing the President's handiwork and issuing a remedy running directly against the President. [00:12:26] Speaker 02: Because after all, in Youngstown, you're reviewing the president's handiwork. [00:12:28] Speaker 02: That dealt with somebody implementing an executive order. [00:12:32] Speaker 02: It's the same, and again, Justice Scalia's opinion in Franklin illustrates this. [00:12:35] Speaker 02: There's separation of powers, concerns that sometimes come with the remedy, the recipient of the remedy. [00:12:39] Speaker 02: But just as with Congress, for instance, you obviously can review an unconstitutional law, even if that involves reviewing Congress's handiwork. [00:12:47] Speaker 02: You just can't enjoin Congress from passing it. [00:12:50] Speaker 02: It's a remedy question. [00:12:52] Speaker 02: I'm short on time, but I just want to bring up one point just with respect to the remand issue that was being raised before. [00:12:57] Speaker 02: As my friend brought up, I think that a narrow remand, I'm putting aside the doctrinal points. [00:13:02] Speaker 02: I do think the merits are fully presented here for what we're saying at the start. [00:13:05] Speaker 02: But I think a narrow remand loses a lot of force in light of what the district court said. [00:13:10] Speaker 02: Along with the call for guidance that my friend was emphasizing, I want to bring up one part that's from page 18 of the opinion. [00:13:17] Speaker 02: District court said, even if individual plaintiffs are granted leave to amend their complaint, [00:13:21] Speaker 02: They would not be able to plead the ultra-various exception. [00:13:23] Speaker 02: And that's because we talked about the merits below. [00:13:26] Speaker 02: And the district court adopted the government's position that essentially the Antiquities Act allows the president to do anything he wants, to declare any object that he thinks worthy of protection a national monument. [00:13:37] Speaker 02: What the district court said is, I'm going to stick to that unless I get guidance from this court. [00:13:40] Speaker 02: Judge Rosman, you were asking about what kind of guidance in particular? [00:13:43] Speaker 02: A definition of the word object. [00:13:45] Speaker 02: That is what we need, at least for our claims, a definition of the word object. [00:13:49] Speaker 02: The last thing I would add, before sitting down and trying to reserve some time, is that that's all the hard work this court needs to do. [00:13:54] Speaker 02: Once you do the hard work of defining object, I think it's awfully easy to see whether the five things that we emphasize and the five things that we rely upon fit that definition. [00:14:03] Speaker 02: Especially because if you take our briefing, the government's incorporated briefing, the 41 AMICI, and the like, every single possible thing to be said on this subject has been said. [00:14:11] Speaker 02: So I agree that the normal rule is remand in those kind of circumstances. [00:14:15] Speaker 02: But it's a rule of a lot of exceptions, and I think this one fits it like a glove. [00:14:19] Speaker 02: I'll reserve the last two minutes. [00:14:25] Speaker 04: Mr. Beast? [00:14:35] Speaker 04: Good morning again, Your Honours. [00:14:37] Speaker 04: John Beeson on behalf of the Federal Defendants. [00:14:39] Speaker 04: This time I hope to reserve three minutes. [00:14:41] Speaker 04: I'll start just quickly on the remand point. [00:14:43] Speaker 04: This court in Haybecker said even on a pure question of law, the court will address it in the first instance only in extraordinary circumstances and only when there will be a miscarriage of justice. [00:14:54] Speaker 04: There's no reason to do that here. [00:14:55] Speaker 04: There are a lot of complex issues about [00:14:57] Speaker 04: whether they properly pled particular designated objects or protected, or whether they properly pled the boundaries of the monument that are not briefed and this court need not get into. [00:15:08] Speaker 04: Turning to the plaintiff's, sorry, appellant's remarks. [00:15:13] Speaker 04: The problem here is that the individual plaintiff's claims are premature. [00:15:17] Speaker 04: No plaintiff has been denied a permit because of the proclamation. [00:15:20] Speaker 04: No plaintiff has been required to pay a fee because of the permit. [00:15:24] Speaker 04: Are plaintiffs on notice that they're going to have to pay a fee? [00:15:27] Speaker 04: So taking Mr. Kimberly, for example, he has a mining claim. [00:15:31] Speaker 04: To proceed on the mining claim, he needs to submit a completed mining plan of operation. [00:15:37] Speaker 04: Once he's done that, because it's in reserve land, there needs to be a validity exam, and the agency can bill him for that. [00:15:43] Speaker 04: But we have not reached that point. [00:15:44] Speaker 04: That is not right, because he has not completed the mining plan of operation. [00:15:48] Speaker 03: No, and I understand that. [00:15:49] Speaker 03: But don't you think that [00:15:53] Speaker 03: That specter could cause him to not exercise the rights he has to mine that? [00:15:58] Speaker 04: Or to go through the process? [00:16:00] Speaker 04: The point of standing is make sure we have a live controversy. [00:16:03] Speaker 04: He's alleged he's lost $22 million in revenue and $2 to $3 million in profit because he didn't want to pay a $100,000 fee. [00:16:11] Speaker 04: That is not a plausible inference from the facts. [00:16:15] Speaker 03: I mean, that's definitely something we would not normally decide in the first instance on those facts. [00:16:21] Speaker 03: Let me ask you this. [00:16:22] Speaker 03: So if he alleged in a declaration attached to their complaint, in an allegation of a complaint they did it, that he intended to proceed with mining his claim, but at this point he understood from the interim management plan that it was going to cost him $100,000 and that he didn't have $100,000 to spend on that. [00:16:46] Speaker 03: Would that be a sufficient interest for him to then be able to bring [00:16:51] Speaker 04: suit under this. [00:16:54] Speaker 04: You don't contest that he's going to have to pay a fee though. [00:17:03] Speaker 03: Are you going to be on the record and say that he gets it for free? [00:17:09] Speaker 04: Before the issue is ripe, he needs to complete a mining plan of operation so that the agency can proceed and there is a ripe dispute. [00:17:17] Speaker 04: If the agency tries to charge him a fee and he thinks it's unconstitutional, he'll have a ripe APA claim at that point. [00:17:22] Speaker 03: Do you agree that we, we, that he has to operate in the whole scheme of, of what's going to happen on the way to getting his permit for his ability to mine? [00:17:33] Speaker 03: He has to comply. [00:17:34] Speaker 03: I mean, he has to begin his process knowing that at some point he's paying you a fee. [00:17:41] Speaker 03: Right. [00:17:42] Speaker 03: And if he doesn't have the money to pay the fee that didn't exist before, why would he? [00:17:49] Speaker 04: He doesn't have to pay the fee until after he completes the mining plan of operation and the exam happens. [00:17:55] Speaker 04: I understand that. [00:17:57] Speaker 03: I must not be being clear. [00:17:59] Speaker 03: Because he's undertaking all of these tasks [00:18:03] Speaker 03: knowing that there are a course of things he has to do. [00:18:06] Speaker 03: And if he's undertaking the task saying, I have a mining claim. [00:18:10] Speaker 03: I want to mine it. [00:18:12] Speaker 03: I have to put together a mining plan. [00:18:14] Speaker 03: That's going to cost me some money. [00:18:16] Speaker 03: At the end of it, I'm going to have to pay $100,000 to the federal government for this examination. [00:18:22] Speaker 03: And he says, I don't have the $100,000, so I don't want to take the first step. [00:18:29] Speaker 03: You're saying he's got to risk it. [00:18:32] Speaker 04: He's alleging that he has $2 to $3 million in lost profit. [00:18:36] Speaker 04: We think it's not plausible that he would forego that. [00:18:41] Speaker 03: What if you said, I mean, I'm just trying to get at this in generalities. [00:18:45] Speaker 03: Now we're getting into plausibility, which requires review. [00:18:50] Speaker 03: You would agree with that. [00:18:54] Speaker 03: I mean, you can't tell us there's no review and then tell us we have to consider the plausibility of things. [00:19:00] Speaker 03: There's jurisdictional review. [00:19:02] Speaker 04: The second point I'd make about the mining claims in particular, there's no dispute that there are habitations from before the crusades on the land he wants to mine. [00:19:20] Speaker 04: So even under Plainish theory of what's a proper object, that land is properly reserved. [00:19:25] Speaker 04: So it's not redressable. [00:19:26] Speaker 04: There's no way he can get that aspect of the. [00:19:28] Speaker 00: But we're on a, we're at a very early procedural stage. [00:19:32] Speaker 00: Right. [00:19:32] Speaker 00: So we're just looking at the allegations. [00:19:35] Speaker 00: You might be right, but does that matter now? [00:19:38] Speaker 04: Well, so the court in Holt says that it can make factual, evaluate factual determinations in connection with jurisdictional determinations on standing. [00:19:47] Speaker 04: We put in evidence that these habitations are on this land. [00:19:50] Speaker 04: Under plaintiff's own, appellant's own theory, that land is properly reserved. [00:19:54] Speaker 04: So even if the proclamation of problematics in other places, he will always have to pay that fee, even under his own theory of what the Antiquity Act allows. [00:20:03] Speaker 04: So there's no redressability on the fee issue. [00:20:05] Speaker 03: So, so tell me about that. [00:20:06] Speaker 03: You said you put in evidence on that. [00:20:08] Speaker 04: We put in affidavits, yes. [00:20:10] Speaker 04: It's in. [00:20:10] Speaker 03: At the district court? [00:20:13] Speaker 04: Yeah. [00:20:14] Speaker 04: Okay. [00:20:15] Speaker 04: Before the district court, in connection with the motion to dismiss on jurisdictional grounds. [00:20:19] Speaker 04: And this court recognized in Holt that that type of evidence is appropriately considered. [00:20:23] Speaker 04: But the district court didn't consider it. [00:20:25] Speaker 04: Right, but because it didn't read standing because it decided on sovereign immunity. [00:20:30] Speaker 01: Okay. [00:20:30] Speaker 01: Would you advocate for that same approach here if, if we were to say that sovereign immunity applies regarding this proclamations? [00:20:40] Speaker 01: Is there any read for us to address standing? [00:20:42] Speaker 04: You would not need to read standing, I think, if you decide on jurisdiction. [00:20:44] Speaker 04: We also think cause of action is a very narrow ground you could decide on, and we don't think they've shown that either. [00:20:50] Speaker 01: I'm going back to standing though, in case we are wrestling with that question. [00:20:54] Speaker 01: I'm struggling with the redressability aspect of it, particularly because you have individual plaintiffs and their circumstances are all different. [00:21:02] Speaker 01: As you were here arguing on behalf of federal defendants against another set of plaintiffs. [00:21:07] Speaker 01: And there's sort of the general question of redressability if we were to grant relief to enjoin the proclamation. [00:21:14] Speaker 01: But then you were just discussing with Judge Carson. [00:21:17] Speaker 01: I mean, each individual plaintiff has different sort of redressability analysis as well. [00:21:21] Speaker 01: So how would we navigate that minefield of redressability? [00:21:25] Speaker 04: Most of the plaintiffs, the issues are speculative and hypothetical at this point. [00:21:29] Speaker 04: They're not ripe issues anyways. [00:21:31] Speaker 04: The, the, the rancher, for instance, has not applied for any range improvement since the proclamations were issued, so. [00:21:38] Speaker 00: But can't the suit proceed if one of the plaintiffs has standing? [00:21:42] Speaker 04: Yes, but we don't think any of them do. [00:21:43] Speaker 04: I was just saying that we don't think redressability is an issue for the branch or the issue there is that claims aren't right. [00:21:48] Speaker 01: Well, these cases were consolidated. [00:21:49] Speaker 01: So the state of Utah says, look, if you enjoin the 2021 proclamation and revert it back to the 2017, that reduces the size of the monument. [00:21:57] Speaker 01: And the harm they've suffered is greatly reduced. [00:21:59] Speaker 01: And that's enough for standing. [00:22:00] Speaker 01: So why isn't that right? [00:22:01] Speaker 04: So if you look at the harms they've actually alleged, if you review their declarations and our declarations and the allegations in their complaint, their primary allegations concern the mere fact that there is [00:22:11] Speaker 04: increased visitation of the monuments. [00:22:13] Speaker 04: First of all, it's not possible that that's injuring them when they are out there advertising to bring tourists to the monuments. [00:22:19] Speaker 04: But in any case, those type of issues won't go away just because the monument boundaries change. [00:22:28] Speaker 04: People already know about it. [00:22:29] Speaker 04: The facts are out there, both because of their advertisements and because of the proclamation. [00:22:33] Speaker 04: So changing the monument size won't redress that issue. [00:22:36] Speaker 04: There are still going to be people coming to these areas. [00:22:39] Speaker 04: So I think you need to look in particular whether reducing a lot of the standing allegations that the same county make go to in general the fact that there are monuments here. [00:22:52] Speaker 04: They don't have anything particularized to the fact that the boundary difference between the Trump proclamations and the Biden proclamations and they haven't explained how that in a particular way they haven't alleged how that actually causes any injury. [00:23:07] Speaker 04: Turning to briefly that cause of action I think [00:23:09] Speaker 04: Altraviruses and equity causes of action are distinct. [00:23:12] Speaker 04: For equity, you need a government act in excess of their power, but you also need a legal injury. [00:23:18] Speaker 04: My friend pointed out Youngstown. [00:23:20] Speaker 04: There, the government seized someone's steel mill, a clear invasion of a property right. [00:23:26] Speaker 04: We don't have anything like that happening yet here, because those things haven't happened. [00:23:29] Speaker 04: It's premature. [00:23:30] Speaker 04: Altraviruses is separate. [00:23:35] Speaker 04: It's whether or not that officials acting [00:23:39] Speaker 04: beyond what they can do on the plain face of the statute. [00:23:43] Speaker 04: Plain, on, on Pelen's approach, any dispute of statutory interpretation would give you an ultra-virus claim. [00:23:49] Speaker 04: They point to no limit on where any dispute of, any routine dispute of statutory interpretation, even if there's reasonable construction of both sides, they would say, if our statutory interpretation is right, then we have an ultra-virus action here. [00:24:03] Speaker 04: If there's a single object that doesn't meet [00:24:05] Speaker 04: our preferred definition, understanding the terms under the statute, then that's ultra-virus. [00:24:10] Speaker 04: But that approach can't work. [00:24:11] Speaker 04: That effectively collapses ultra-virus into an unlimited review that's more expansive even than the APA already is. [00:24:19] Speaker 04: So you need to have something that's clear, plain, obvious on the face of the statute. [00:24:24] Speaker 04: A routine dispute where both parties have differences on a reasonable construction of the statute. [00:24:29] Speaker 04: That's not the type of dispute where ultra-virus analysis is appropriate. [00:24:34] Speaker 03: Well, you have a statute, though, that is seemingly right for construction of things like, is the amount of land surrounding the object to be preserved as small of a parcel as possible? [00:24:56] Speaker 03: I mean, it seems like those are the kind of things that are easily reviewable and not just these wholesale, gosh, just because you disagree with it. [00:25:04] Speaker 03: If they allege facts as to why that might be an appropriate size of a reservation, I mean, isn't that what courts do? [00:25:15] Speaker 03: Look at that to see if it's right. [00:25:17] Speaker 04: Under the APA, that is what courts do, but this is not APA review. [00:25:20] Speaker 04: It's not abusive discretion review here. [00:25:22] Speaker 04: The question is whether the president is acting completely outside the bounds of his authority. [00:25:28] Speaker 04: Congress told the president to make a determination about how much land was necessary for the care and management of the objects. [00:25:36] Speaker 04: That was [00:25:37] Speaker 04: Delegated to the president not to the courts. [00:25:39] Speaker 03: Well, let me ask you this So judge Federico asked you he said he said could they could they designate the whole state of Utah and you said, oh, no, clearly not because They don't own the whole state of Utah. [00:25:50] Speaker 03: Could they designate all of the federal land in Utah? [00:25:53] Speaker 03: Well, I guess in it in it not be reviewable if they had a [00:25:57] Speaker 04: The question is whether there's a bonafide basis for the designation, and I think it's important to emphasize that Congress is very engaged here. [00:26:05] Speaker 04: Congress has not been an absentee. [00:26:07] Speaker 03: No, no, that's not responsive. [00:26:09] Speaker 04: Can they do it? [00:26:11] Speaker 04: If they have a bonafide basis, they can designate any federal land where they believe there's a bonafide basis to [00:26:17] Speaker 04: that there are legitimate needs to protect objects like historical. [00:26:20] Speaker 03: I mean, if they went through and identified various grasses and, you know, junipers grow all over Utah, as do pinions. [00:26:29] Speaker 03: There are all kinds of historic Mormon sites in Utah that are out on federal lands, old historic trails. [00:26:40] Speaker 03: I mean, they could, under your position, they could reserve the whole state of Utah's public federal land, and it would not be reviewable. [00:26:48] Speaker 04: This is federal land. [00:26:50] Speaker 04: The recourse there would be political, not judicial review. [00:26:53] Speaker 04: OK. [00:26:53] Speaker 04: Your answer is yes. [00:26:54] Speaker 04: Yes. [00:26:54] Speaker 04: Yes. [00:26:55] Speaker 04: OK. [00:26:55] Speaker 00: You won. [00:26:56] Speaker 00: I'm sorry. [00:26:56] Speaker 00: Go ahead. [00:26:56] Speaker 00: Oh, thank you. [00:26:58] Speaker 00: Is it the government's position that the Antiquities Act is ambiguous? [00:27:04] Speaker 04: We believe that we've made a reasonable construction of the statute here. [00:27:09] Speaker 03: OK. [00:27:10] Speaker 00: So that didn't answer the question. [00:27:14] Speaker 04: Say more. [00:27:16] Speaker 04: I think obviously the terms are open to different constructions. [00:27:20] Speaker 04: We believe that we have made a reasonable construction of the statute here. [00:27:25] Speaker 03: So would we determine if it's ambiguous before or after applying the traditional canons of statutory construction? [00:27:34] Speaker 04: I think you would interpret it under the, using the ordinary tools of stat, statutory interpretation, but you only do that once you reach the merits, if it's reviewable. [00:27:42] Speaker 04: That's not the question you're asking for ultra various review purposes. [00:27:45] Speaker 04: The question you're asking for ultra various review purposes is this patently obviously wrong. [00:27:49] Speaker 00: How, how can a statutory construction not be part of the ultra various analysis when we're trying to situate where the discretion resides? [00:27:56] Speaker 00: Isn't that part of the task here? [00:27:57] Speaker 04: Yeah, I'm sorry. [00:27:58] Speaker 04: So there, there are two different statutory [00:28:00] Speaker 04: interpretation. [00:28:01] Speaker 04: One is, is something patently or obviously wrong under the statute? [00:28:05] Speaker 04: That is the Altavira's question. [00:28:06] Speaker 04: Another one is, how do we apply this particular provision in a granular circumstance? [00:28:12] Speaker 04: That's, in our view, that's not properly part of the Altavira's review. [00:28:16] Speaker 04: And, and just one final point. [00:28:19] Speaker 04: Plaintiff said these arguments weren't raised before, but they were raised before. [00:28:22] Speaker 04: In 1908, President Roosevelt reserved the Grand Canyon. [00:28:26] Speaker 04: 800,000 acres, very large. [00:28:29] Speaker 04: The only difference from the reservations here is that it's not as densely populated with native artifacts as these monuments are, which are actually talked about in the legislative history. [00:28:38] Speaker 03: How did they ever reach the merits to determine that the Grand Canyon was appropriately designated? [00:28:43] Speaker 04: So in 1920, the United States brought a suit to quiet title. [00:28:48] Speaker 04: So it was not, it was not, there was no sovereign immunity issue. [00:28:53] Speaker 04: There was no cause of action issue because the United States brought the suit. [00:28:56] Speaker 04: And in 1920, the Supreme Court affirmed that that monument designation was proper. [00:29:00] Speaker 04: And I think if you go and look at, I invite you to go look at the briefs in that case, the arguments that the appellant made in that case about why the designation was improper are quite similar to the arguments planners are making now. [00:29:10] Speaker 03: So let me see if I can, so like quiet title act kind of case. [00:29:13] Speaker 03: Yeah. [00:29:15] Speaker 03: All right. [00:29:15] Speaker 03: I'm going to let you go over here because I have a question here. [00:29:17] Speaker 03: So your position is, if you wanted to in this case, after the president [00:29:26] Speaker 03: declared the monument, the United States could file suit to quiet title and ask a court to uphold the validity of the monument. [00:29:40] Speaker 04: Yes, there would be no cause of action issue there, because we'd have a cause of action. [00:29:44] Speaker 03: Okay, so. [00:29:45] Speaker 04: There'd be no sovereign immunity issues there. [00:29:46] Speaker 03: I got it. [00:29:47] Speaker 03: So it's sounding to me like, but who do you have on the other side of that? [00:29:54] Speaker 03: Who's on the other side of the V in your quiet title action? [00:29:57] Speaker 04: So in Cameron, it was a miner who was trying to claim a mining site at the head of the Bright Angel Trail. [00:30:04] Speaker 04: And trying to maintain structures there that essentially charge people to use the trail while claiming to be doing a mining operation. [00:30:12] Speaker 04: And they brought a suit to essentially contest his patent to the land. [00:30:17] Speaker 04: OK. [00:30:19] Speaker 04: All right. [00:30:20] Speaker 03: I don't have it. [00:30:21] Speaker 03: Do you have anything else? [00:30:22] Speaker 03: I don't. [00:30:22] Speaker 03: OK. [00:30:22] Speaker 03: Thank you, counsel. [00:30:23] Speaker 03: You're out of time. [00:30:25] Speaker 03: All right, did you have, I think you had a couple of minutes? [00:30:30] Speaker 02: Okay, so we'll try and cover a good amount of ground in a minute 46. [00:30:35] Speaker 02: On standing, two quick points. [00:30:37] Speaker 02: One is the government ignores the deterrent affection standing. [00:30:40] Speaker 02: We're not complaining about paying a fee necessarily. [00:30:42] Speaker 02: We're having a permit denied. [00:30:44] Speaker 02: It's the higher administrative costs and deterrents that come with even more burdensome regulatory scheme. [00:30:48] Speaker 02: I want to emphasize with Kyle Kimmerle two other quick points. [00:30:51] Speaker 02: Judge Carson, the point you're asking about, what if he raised this? [00:30:55] Speaker 02: He raised that expressly. [00:30:56] Speaker 02: It's in his declarations. [00:30:58] Speaker 02: The other part just more doctrinally. [00:31:00] Speaker 02: about redressability. [00:31:01] Speaker 02: The government's wrong twice over. [00:31:02] Speaker 02: One, with redressability. [00:31:05] Speaker 02: What they're confusing is redressability on merits for standing purposes. [00:31:09] Speaker 02: For standing purposes, you take our view of the law. [00:31:11] Speaker 02: We say it's not separable. [00:31:12] Speaker 02: But also, it's incomplete. [00:31:13] Speaker 02: The objects they're talking about, all they say in the declaration is that in the 432 acres, there's some objects. [00:31:19] Speaker 02: We have no idea what the smallest area compatible is for it. [00:31:21] Speaker 02: And it doesn't answer Kyle's independent ground for standing, which is that all of his claims have cratered in value once they've been on monument land. [00:31:28] Speaker 02: OK, so that's standing. [00:31:30] Speaker 02: On reviewability, Judge Carson, you're asking, the Supreme Court's reviewed this twice. [00:31:34] Speaker 02: What do we make of that? [00:31:35] Speaker 02: I agree with the government it doesn't answer the sovereign immunity question because they brought the suit, but it destroys their Dalton argument. [00:31:41] Speaker 02: Dalton is entirely about cases committed to the president's discretion. [00:31:45] Speaker 02: If the Supreme Court thought the Antiquities Act committed this to the president's discretion, they would not review proclamations on the merits. [00:31:51] Speaker 02: The last thing I would say, just on the merits, my friend tried to kind of wiggle around it. [00:31:56] Speaker 02: Their view of the merits is an antiquities act that only Richard Nixon could love. [00:31:59] Speaker 02: If the president declares a monument, it is not illegal. [00:32:02] Speaker 02: Tough. [00:32:03] Speaker 02: That is not, in our view, cannot possibly be right. [00:32:06] Speaker 02: It's not what the Chief Justice thinks is right. [00:32:07] Speaker 02: It's not what the DC Circuit thinks. [00:32:09] Speaker 02: And the government's inviting a square circuit split on that regard. [00:32:12] Speaker 02: We would urge that this court should perform its traditional function and review these ultra-various acts. [00:32:18] Speaker 02: All right? [00:32:19] Speaker 02: Thank you. [00:32:22] Speaker 02: OK. [00:32:23] Speaker 03: Well, we are going to take a short recess