[00:00:00] Speaker 05:
Welcome to everyone and thanks to the University of Colorado School of Law for having us to your fine facility and for the warm welcome you've given us to all the students in the crowd.

[00:00:13] Speaker 05:
Thanks for coming out.

[00:00:14] Speaker 05:
We really appreciate your interest in these cases and hope that we're able to provide everybody with an experience today that's worth seeing.

[00:00:24] Speaker 05:
So with that, we'll go ahead and call the first case.

[00:00:27] Speaker 05:
Actually, these two cases are consolidated, 23-4106 and 23-4107.

[00:00:35] Speaker 05:
Garfield County, Utah versus Biden and Dalton versus Biden.

[00:00:39] Speaker 05:
Counsel.

[00:00:44] Speaker 03:
Stanford person from the Utah Attorney General's Office on behalf of the State and County Plaintiffs and Appellants.

[00:00:50] Speaker 05:
Okay, can you, well, go ahead and since you're the appellant, we'll go ahead and let you take the

[00:00:56] Speaker 05:
We're going to go ahead and call your case.

[00:00:59] Speaker 05:
Can you give us an idea?

[00:01:00] Speaker 05:
So we have an hour set aside for this case, 30 minutes per side, with two lawyers per side.

[00:01:07] Speaker 05:
Has there been any discussion about how you're going to split up your time?

[00:01:11] Speaker 05:
Do you want to run your cases, even though they're largely identical, do you want to run them separately?

[00:01:18] Speaker 05:
Or do you want to just have 30 minutes per side and you lawyers decide how you're going to break up your time?

[00:01:25] Speaker 03:
I think we had anticipated just doing this case first and then the Dalton case second.

[00:01:32] Speaker 05:
Okay.

[00:01:34] Speaker 05:
Anything from Council for the Appellees?

[00:01:37] Speaker 04:
Okay.

[00:01:45] Speaker 05:
All right.

[00:01:45] Speaker 05:
Well, we'll go ahead and let you be the master of your own case here.

[00:01:48] Speaker 05:
Go ahead and proceed.

[00:01:51] Speaker 03:
As mentioned, Stanford Purser from the Utah Attorney General's Office on behalf of the state and county plaintiffs.

[00:01:58] Speaker 03:
May it please the court, I'd like to reserve four minutes for rebuttal.

[00:02:05] Speaker 05:
OK, I'm going to get a couple of things.

[00:02:07] Speaker 05:
One, on your rebuttal, I'm going to need you to watch your clock and try to reserve your time.

[00:02:12] Speaker 05:
And then the other thing is we're having a little trouble hearing you up here.

[00:02:15] Speaker 05:
So if you can talk louder or adjust the mic,

[00:02:17] Speaker 03:
I'll try to lean over, thank you.

[00:02:19] Speaker 03:
The Antiquities Act expressly limits what and how much can be reserved as a national monument.

[00:02:28] Speaker 03:
As to the what, the designation can cover only historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest situated on federal land.

[00:02:42] Speaker 03:
As to the scope,

[00:02:44] Speaker 03:
The act says any additional land reserved for the monument quote shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.

[00:02:57] Speaker 03:
Just three years ago Chief Justice Roberts lamented how these limits

[00:03:02] Speaker 03:
had ceased to pose any meaningful restraint.

[00:03:06] Speaker 03:
The act has somehow been transformed, he said, into a power without any discernible limits to set aside vast and amorphous expanses of terrain above and below the sea.

[00:03:16] Speaker 03:
He hoped that the Supreme Court would get a case where it could review these limits.

[00:03:23] Speaker 03:
This is such a case.

[00:03:25] Speaker 02:
Counsel, speaking of past cases, has any court ever found a presidential proclamation designating a national monument to be unlawful or beyond the scope of the president's power?

[00:03:36] Speaker 02:
It has not.

[00:03:37] Speaker 02:
So what makes your case different that we should distinguish it from past cases where similar challenges have been raised?

[00:03:44] Speaker 03:
Well, a few reasons.

[00:03:46] Speaker 03:
I'm not sure the arguments we raised have always been raised in the past and to the extent they have.

[00:03:52] Speaker 03:
courts have found that they weren't properly pled and dismissed on those grounds.

[00:03:58] Speaker 03:
But here, we have a clear case of proclamations that exceed any reasonable interpretation of the Antiquities Act and the limits that I just meant.

[00:04:12] Speaker 01:
So you're invoking the ultra virus exception to sovereign immunity, right?

[00:04:15] Speaker 01:
So where I'm having a little trouble is understanding how we're supposed to think about this.

[00:04:21] Speaker 01:
at the threshold stage, it seems that the sovereign immunity question collapses with the merits question when the ultra-virus exception is in the case.

[00:04:31] Speaker 01:
So how, how should we be thinking about the ultra-virus exception to sovereign immunity at this procedural stage?

[00:04:39] Speaker 03:
Well, it's a very good question.

[00:04:41] Speaker 03:
And in fact, the, the district court

[00:04:44] Speaker 03:
seem, at least to a large extent, based his decision on the fact that, oh, I don't have any guidance on what this means.

[00:04:52] Speaker 03:
Therefore, it's barred by sovereign immunity, and we can't go forward with this ultra virus claim.

[00:04:57] Speaker 03:
But here, in part because the district court said that, the court can and should interpret these limits within the Antiquities Act to confirm that

[00:05:14] Speaker 03:
Utah and the counties have stated a claim under the ultra virus doctrine and that in turn will provide the guidance that the district court says he needs to be able to proceed in this place.

[00:05:27] Speaker 03:
He sort of just threw up his hands and said, I don't know what to do here.

[00:05:30] Speaker 01:
So is your position that the inquiry on the ultra virus exception and the actual merits question converge and should be decided by this court?

[00:05:40] Speaker 03:
That is our position.

[00:05:41] Speaker 03:
We think the briefing is before the court and the court would be able to do that to remand it to the district court either with our preference would be for the court just to decide that issue and say, yes, we have stated a claim and remand it on that ground.

[00:05:57] Speaker 03:
But even short of that, to just provide the interpretation of the act that the district court says he doesn't have so the district court can then

[00:06:08] Speaker 03:
apply these standards to our complaint and determine for itself that yes the state and counties have stated a claim.

[00:06:17] Speaker 05:
So that would be unusual at least in our normal course of practice where a district court hasn't ruled as to any merits and just made a broad ruling that someone that there was no jurisdiction to hear the claim

[00:06:36] Speaker 05:
If we disagreed with that, we would normally send it back to the district court to handle in the first instance, including questions about interpretation of the statute that may not have been addressed before.

[00:06:51] Speaker 05:
I mean, there's generally not any ability or a practice of a district court to say, well, no appellate court's addressed this statute before, so I'm not going to decide it.

[00:07:04] Speaker 05:
once they decide it, all have the ability to make a decision.

[00:07:07] Speaker 05:
I mean, how do you, do you agree you're sort of asking us to, by stepping out in front of the district court to abandon our normal course of dealing in these things?

[00:07:20] Speaker 03:
No, I agree that is the normal course, but for the two reasons we've just discussed, Judge Rossman's question, the intertwined aspect of our ultra virus claim,

[00:07:34] Speaker 03:
With with the question of have we stated a claim and to the fact that the district court is explicitly said in his order.

[00:07:43] Speaker 03:
I don't know what to do there's no higher court interpretation on this it's barred by sovereign immunity.

[00:07:52] Speaker 03:
because he tied it that way, it's clear if we go back and he doesn't have guidance on this, I'm not sure how the result is going to be different.

[00:08:02] Speaker 03:
He's sort of made his ruling on that question and said given the state of the laws, he sees it, he's going to punt or decide we have a state of the claim.

[00:08:14] Speaker 01:
So what is the kind of guidance that you would think is necessary?

[00:08:18] Speaker 01:
I suppose it would be

[00:08:20] Speaker 01:
the interpretation of the statute, right?

[00:08:23] Speaker 03:
Yes.

[00:08:23] Speaker 01:
And what about whether there's a cause of action?

[00:08:29] Speaker 03:
Well, again, those two are intertwined, but... Well, actually, look, I'm sorry, let me ask you one thing.

[00:08:37] Speaker 01:
You say they're intertwined, but I see them as intertwined in the sense that we don't know if the ultra-virus exception to sovereign immunity applies unless we know there's been an ultra-virus act

[00:08:49] Speaker 01:
And in that sense, they're intertwined.

[00:08:51] Speaker 01:
And that's jurisdictional, right?

[00:08:53] Speaker 01:
The cause of action question is not jurisdictional, but yet there needs to be a cause of action.

[00:08:59] Speaker 01:
And you rely on our case Simat for that proposition?

[00:09:05] Speaker 03:
Yes, among others.

[00:09:07] Speaker 03:
In the DC Circuit Court also, they've expressly held that an ultra-virus claim can move forward in exactly these types, that it is reviewable.

[00:09:18] Speaker 01:
So what is an ultra-virus claim that's distinct from an ultra-virus exception to sovereign immunity?

[00:09:25] Speaker 03:
Well, again, that gets back to the Court's question.

[00:09:31] Speaker 03:
If you answer one, if you've

[00:09:35] Speaker 03:
If you've stated an ultra virus claim, then you've stated the exception to sovereign immunity.

[00:09:43] Speaker 03:
And I think in this case, vice versa, you have to, well, at least at the motion to dismiss stage, our complaint thoroughly and comprehensively goes through dozens and dozens and dozens and pages of allegations about

[00:10:05] Speaker 03:
Why the items listed in the proclamation are not objects as properly defined in this statute.

[00:10:16] Speaker 03:
And again, even if they were or even if some of them were, why 3.2 million acres is not the smallest area compatible with the care and management.

[00:10:28] Speaker 03:
We have made those claims very expressly and thoroughly in our complaint.

[00:10:34] Speaker 03:
And for that reason, showing that these proclamations exceed the limits set forth in the Antiquities Act, we have both stated a claim and stated the exception to the sovereign immunity bar.

[00:10:54] Speaker 05:
So you talk about there being 500 objects that, or you don't agree they're all objects, but 500 proclamation

[00:11:04] Speaker 05:
declares them to be objects that have been reserved.

[00:11:11] Speaker 05:
And do you expect that this court would go through your complaint and pass judgment on all 500 objects?

[00:11:21] Speaker 05:
I mean, before the district court has ever made a determination as to the objects?

[00:11:28] Speaker 03:
No, but if we were on, say, the merits of whether we prevail, some court would need to do that.

[00:11:36] Speaker 03:
But the posture of the case here is we're up on dismissal for a motion to dismiss.

[00:11:42] Speaker 03:
So we've stated a claim if there's even one object.

[00:11:47] Speaker 05:
As I understand the district court's order, at least,

[00:11:50] Speaker 05:
The district court took the position that no matter what's in the proclamation, that there's sovereign immunity and it can be challenged.

[00:12:04] Speaker 05:
So I guess I'm just curious why you would want us to go further than to say that's wrong.

[00:12:12] Speaker 05:
You district court have to look at it in the first instance and decide

[00:12:19] Speaker 05:
whether on the merits, at least at the motion it is misstaged, these plaintiffs have stated a claim.

[00:12:27] Speaker 03:
Again, it's because the district court here wouldn't do that.

[00:12:32] Speaker 03:
He just said, I've got no guidance on what these limits mean.

[00:12:37] Speaker 03:
Therefore, I'm not going to move forward.

[00:12:40] Speaker 03:
If we go down, if it's remanded back to him without guidance,

[00:12:47] Speaker 03:
I'm not sure what he does with that.

[00:12:49] Speaker 01:
Why does the guidance from us have to involve the object-by-object inquiry at this stage?

[00:12:58] Speaker 01:
Wouldn't it be appropriate to construe the statute and if it's construed in favor of your position, those would be the instructions to the district court.

[00:13:09] Speaker 03:
And we would totally accept that too.

[00:13:13] Speaker 01:
I thought as much.

[00:13:16] Speaker 01:
But I'm really struggling with the cause of action aspect of this because

[00:13:20] Speaker 01:
Even if we were to agree with your construction of the statute, and I understand the rhetoric, and I'm not suggesting anything bad about, use that word, but sort of the formulation of this ultra-virus claim, you still need a cause of action.

[00:13:35] Speaker 01:
And we have the Safe Streets case that says you can't have this free-floating right.

[00:13:41] Speaker 01:
And I'm not understanding your reliance on, how your reliance on SIMAT works here to establish a cause of action and would appreciate some help with that.

[00:13:51] Speaker 03:
Well, perhaps turning to the DC Circuit, they have, as we outlined in our brief, they have expressly held that the ultra virus provides the means to review

[00:14:09] Speaker 03:
these sorts of claims.

[00:14:12] Speaker 02:
But the federal defendants distinguish the DC Circuit and the Ninth Circuit cases on grounds that you're evaluating two statutes.

[00:14:19] Speaker 02:
We're not just looking in those cases.

[00:14:20] Speaker 02:
They weren't looking just at the Antiquities Act.

[00:14:22] Speaker 02:
So why isn't that differences in those cases distinguish them in a way that here is we're just looking at the proclamations under the Antiquities Act, not comparing that to any other federal action under a different statute.

[00:14:35] Speaker 02:
I mean, are those even comparable?

[00:14:38] Speaker 03:
Well, two answers, I think.

[00:14:42] Speaker 03:
The first is, I think they're misinterpreting those DC Circuit cases.

[00:14:47] Speaker 03:
In some, there may be two actions, but I'll quote from American Forest Resource Council.

[00:14:56] Speaker 03:
It's 77F4, it's 787.

[00:15:02] Speaker 03:
The DC Circuit said in their Mountain States case, for example, the plaintiffs challenged the number of monument designations as statutorily ultra-virus.

[00:15:15] Speaker 03:
They argued that the designations reach far beyond the purpose and the scope and the size of any national monument and were also contrary to various statutes.

[00:15:28] Speaker 03:
So two claims there, contrary to various statutes and in violation of the Antiquities Act.

[00:15:35] Speaker 03:
And the court said, we found both types of claims reviewable.

[00:15:44] Speaker 01:
That's not very helpful.

[00:15:45] Speaker 01:
I mean, it's not your fault that it's not helpful.

[00:15:46] Speaker 01:
But it's not very.

[00:15:48] Speaker 01:
What does that mean for our purposes though?

[00:15:51] Speaker 03:
Go ahead.

[00:15:54] Speaker 03:
I think it means, one,

[00:15:56] Speaker 03:
The court isn't saying here we're only allowing the antiquities ultra virus claim to go forward because there's also some other one.

[00:16:04] Speaker 03:
They said both claims are reviewable.

[00:16:08] Speaker 03:
And two, I don't think it makes very much conceptual sense to say we're only going to look at or apply and enforce the limits in the Antiquities Act.

[00:16:20] Speaker 03:
If you're also claiming a violation of some other act,

[00:16:25] Speaker 03:
The Antiquities Act can stand on its own, and if those limits are exceeded, they can be reviewed.

[00:16:31] Speaker 03:
There's no conceptual, logical, legal reason to say we're only going to enforce those limits if we're arguing about some other act, too.

[00:16:44] Speaker 03:
And I don't think that's consistent with what the DC Circuit has held.

[00:16:49] Speaker 03:
And I would just add,

[00:16:50] Speaker 03:
Beyond the ultra virus claim, we also assert that the sovereign immunity does not apply here because of section 702 of the Administrative Procedure Act.

[00:17:01] Speaker 05:
Okay, thank you, Councilor, you're out of time.

[00:17:12] Speaker 05:
All right, Mr. Bynes, are you going to try to use part of this time?

[00:17:15] Speaker 05:
Is that how this is working?

[00:17:16] Speaker 05:
Yeah, I'm hoping to reserve four minutes for my co-counsel for the tribal interveners.

[00:17:20] Speaker 05:
Well, it's up to you.

[00:17:23] Speaker 05:
May it please the court.

[00:17:23] Speaker 05:
If you use his time, he's going to be mad at you.

[00:17:27] Speaker 04:
John Bees on behalf of the federal defendants, I'd like to reserve four minutes for my co-counsel for the tribal interveners.

[00:17:34] Speaker 04:
It's important to understand the context of this case.

[00:17:36] Speaker 04:
This case is about a challenge to the United States management of the United States land.

[00:17:40] Speaker 04:
Congress said that the public can use and even exploit that land in certain circumstances, but directed the president to protect and conserve objects of historical or scientific interest on the lands.

[00:17:51] Speaker 04:
And that kind of stewardship is what the proclamations here do.

[00:17:54] Speaker 04:
The primary effect of the proclamations is simply to reserve the lands from entry under the public lands laws, mineral entry, things like that, unless Congress acts and says otherwise.

[00:18:05] Speaker 05:
So are you arguing today to

[00:18:08] Speaker 05:
uphold the district court's position that there's absolute sovereign immunity and that the proclamation can't be challenged?

[00:18:17] Speaker 04:
We think there are multiple threshold issues with the plaintiff's claims here.

[00:18:20] Speaker 04:
We think there is not a waiver of sovereign immunity.

[00:18:22] Speaker 05:
Okay, so the answer is yes to the first one.

[00:18:25] Speaker 05:
Okay, so district court saying it doesn't matter what the president put in there, it's unreviewable, there's sovereign immunity.

[00:18:33] Speaker 05:
Right.

[00:18:34] Speaker 05:
Okay, so you're, okay, go ahead.

[00:18:35] Speaker 04:
Right.

[00:18:36] Speaker 04:
We think there's a there and we also think there's no cause of action.

[00:18:39] Speaker 04:
We think there's a standing issue and we think at the end of the day, the court can't kind of intrude on the president's discretionary decision making anyways.

[00:18:47] Speaker 05:
Okay.

[00:18:48] Speaker 05:
I'm sorry.

[00:18:48] Speaker 05:
Let me ask you this real fast.

[00:18:49] Speaker 05:
So you say, I thought you said there's no cause of action because there's a standing issue.

[00:18:55] Speaker 05:
There's no cause of action and there's a standing issue.

[00:18:58] Speaker 04:
Okay.

[00:18:58] Speaker 04:
Go ahead.

[00:18:59] Speaker 04:
Sorry.

[00:19:00] Speaker 04:
And just to be clear, we think the cause of action is a discrete issue.

[00:19:03] Speaker 04:
They've acknowledged there's no cause of action under the statute itself.

[00:19:06] Speaker 04:
They're essentially calling on the court to use its equity powers.

[00:19:09] Speaker 04:
And in that sense, it's really effectively like a pre-APA administrative challenge.

[00:19:15] Speaker 04:
And if you look back to those cases, they weren't the same as the APA.

[00:19:19] Speaker 04:
The APA is a very generous review provision, as the court describes in cases, about how the gentleman interests.

[00:19:26] Speaker 01:
Is that how you distinguish Simat, the appellant's reliance on that case?

[00:19:30] Speaker 01:
Can you speak to that a little bit on the cause of action issue?

[00:19:32] Speaker 04:
So in our view, under, for like a general equity cause of action, you need to have an invasion of a legally protected right.

[00:19:38] Speaker 04:
And that's either a right traditionally protected at equity under common law, like a property right, a contract right, a right against tortious interference.

[00:19:47] Speaker 04:
Or it has to be a right granted by positive law, by the statute itself, giving them a privilege that the Congress intended to be judicially enforceable.

[00:19:55] Speaker 04:
And that's how cases, pre-APA cases operated, if you look at, for instance,

[00:20:00] Speaker 04:
Tennessee Electric Power Company versus TVA, 306 US 118.

[00:20:05] Speaker 04:
That's a case from before the APA.

[00:20:08] Speaker 04:
They said exactly that.

[00:20:09] Speaker 04:
You need to either have a statutory privilege in the statute you're trying to enforce, or you need to have a right traditionally protected at equity in 1789.

[00:20:16] Speaker 04:
Those types of issues.

[00:20:18] Speaker 04:
They don't have any of that here.

[00:20:19] Speaker 04:
They're saying an Article III injury is all you need to undertake a general equity review of statutory compliance.

[00:20:27] Speaker 04:
And that effectively dilutes

[00:20:30] Speaker 04:
that kind of equity review to the point where it's even broader than APA review.

[00:20:35] Speaker 01:
There's no limit to that.

[00:20:35] Speaker 01:
Then what do we do with the language in, in, in SIMOT that says equity provides the basis for relief, the cause of action, so to speak, in appropriate cases within this court's jurisdiction?

[00:20:46] Speaker 04:
In appropriate cases, in a case where there is that type of injury, and I believe if I recall, the injury there was a constitutional issue with the treatment of a prisoner.

[00:20:54] Speaker 01:
So it's the distinction that you, that,

[00:20:56] Speaker 01:
Are you suggesting that we distinguish Simot by saying the equitable cause of action was anchored in the enforcement of the Eighth Amendment?

[00:21:04] Speaker 04:
Yes, and in the fact that not just that it was constitutional, but the Eighth Amendment gives rights in particular to the prisoner so that he has a type of right that's protected by positive law that you can enforce in equity.

[00:21:16] Speaker 04:
But they don't have that type of legal injury here.

[00:21:19] Speaker 01:
Why didn't Safe Streets cite Simot?

[00:21:22] Speaker 04:
You'd have to ask Judge Briscoe.

[00:21:25] Speaker 04:
But I think if you read Safe Street, it's effectively dispositive of the cause of action issue here, because it says you need substantive rights under the federal statute you're trying to enforce.

[00:21:35] Speaker 04:
They don't have that.

[00:21:36] Speaker 04:
There's no substantive rights they have under the Antiquities Act here.

[00:21:40] Speaker 04:
And they're trying to ask this court to use this general equity power in a way that's, they might have a grievance, but they don't have that kind of legal injury that's called for by the, by the kind of tradition of these old APA cases.

[00:21:51] Speaker 04:
It's important

[00:21:52] Speaker 04:
They want you to take kind of a 21st century perspective of something that's really governed by how courts treated equity actions long before there was an APA.

[00:22:00] Speaker 04:
And they want you to kind of import those more generous kind of arbitrary and capricious review standards that Congress granted for some agency actions into actions where it's not supposed to apply.

[00:22:11] Speaker 04:
So I think it's problematic from the cause of action perspective.

[00:22:14] Speaker 02:
So council, can I return to the sovereign immunity question?

[00:22:17] Speaker 02:
Let's say the president declared the entire state of Utah to be a national monument.

[00:22:21] Speaker 02:
Would that be a proclamation that would be subject to ultra-virus review?

[00:22:25] Speaker 04:
I think setting aside the issue, I would say, I think that would solve the ultra-virus problem because the president by law has no authority to proclaim state land or private land.

[00:22:37] Speaker 02:
But that would require a court then to make a determination, perhaps a factual and a legal one, regarding land ownership, right?

[00:22:45] Speaker 04:
Right, but I think

[00:22:47] Speaker 04:
there's no argument, there's no reasonable argument that the president has that kind of authority, and that's the type of issue where altruism is supposed to apply.

[00:22:54] Speaker 04:
I don't think it collapses into the merits because I think routine disputes of statutory interpretation, or is there a, did the president abuse his discretion in deciding one thing is an object or another?

[00:23:07] Speaker 04:
I think that kind of granular review is not what it's meant for.

[00:23:12] Speaker 04:
It's meant for where there's a plain,

[00:23:14] Speaker 04:
the president plainly misperceives the statute.

[00:23:16] Speaker 04:
If there's a statutory prohibition on monuments in the state of Wyoming, if the president were to declare one in Wyoming, that would clearly be altruistic because he doesn't have authority to do that.

[00:23:25] Speaker 02:
My question hits at sort of the land ownership aspect in section A of the statute, the same place, the same subsection where you find objects.

[00:23:33] Speaker 02:
Those terms are not defined in the statute.

[00:23:36] Speaker 02:
So you're suggesting we could draw the line to say when the president decides certain things are objects and that they have

[00:23:43] Speaker 02:
historical or scientific interest, that that's not reviewable.

[00:23:47] Speaker 02:
On the other hand, if the president were to declare land that's not federally owned, again, we'd have to, some court would maybe have to make that finding that that would be subject to judicial review.

[00:23:56] Speaker 04:
Right, and I think if you look at the Alfred Vera's cases, they use language like patently misconstrues the act or disregards a specific and unambiguous statutory command or violates

[00:24:07] Speaker 04:
specific statutory directive.

[00:24:10] Speaker 04:
It's essentially meant to be for situations that historically we would have called rid of mandamus situations where it's plain and obvious that there's a problem and not what historical courts looked at as kind of a rid of error where they've reviewed every determination of law or fact and it's for those kind of extreme circumstances where there's something so patently obvious that the court should intervene with its equity powers even when Congress hasn't given that kind of

[00:24:33] Speaker 04:
authorize that kind of review.

[00:24:36] Speaker 04:
It's for those kind of extreme circumstances, extraordinary circumstances, a case set.

[00:24:40] Speaker 01:
I'm not sure I understand how to reconcile what you told me about your cause of action position with your answer to Judge Federico's question.

[00:24:45] Speaker 01:
Maybe I'm missing something.

[00:24:46] Speaker 01:
It seems that if there were some situation that would constitute an ultra various act under the Antiquities Act.

[00:24:57] Speaker 01:
maybe it's, you know, impossible to even think what that could be, but let's assume there is something that, that could be reviewable by a court, which would then require, I suppose, a cause of action in equity.

[00:25:10] Speaker 04:
So I, to be clear, I wasn't suggesting they would have a cause of act.

[00:25:13] Speaker 04:
You'd need a plaintiff with a proper cause of action still in an ultra, ultra-virus act would just solve the sovereign immunity problem.

[00:25:20] Speaker 04:
You would still need a cause of action.

[00:25:22] Speaker 04:
So you'd need a plaintiff who has that kind of traditional injury inequity or has some positive, some right under positive law under the statute they're trying to.

[00:25:30] Speaker 05:
So, so what if you had a landowner that had a three acre in holding that was mistakenly picked up in this.

[00:25:37] Speaker 05:
designation.

[00:25:38] Speaker 04:
Right.

[00:25:38] Speaker 04:
They would have a property interest, which is an interest traditionally protected in equity.

[00:25:43] Speaker 04:
So they would have a clause of action.

[00:25:45] Speaker 04:
And then if it was also altruvirus, because it was plainly beyond the president's authority, then they would have a waiver of sovereign means.

[00:25:52] Speaker 04:
They have neither of those things here.

[00:25:53] Speaker 05:
So does the fact that the state of Utah has, well, I mean, you're picking up some mineral interest owners in this proclamation, aren't you?

[00:26:02] Speaker 04:
So all valid existing rights are preserved.

[00:26:04] Speaker 04:
So if someone has an existing mineral claim prior to the proclamation in the land that's reserved, that right is preserved.

[00:26:11] Speaker 05:
But you're taking some of the bundle of sticks away from them because you're placing additional requirements on them that weren't there before the designation.

[00:26:18] Speaker 04:
Right.

[00:26:18] Speaker 04:
And if someone had a right claim involving those requirements, they would have standing.

[00:26:23] Speaker 04:
They would have a cause of action.

[00:26:24] Speaker 04:
The only issue would be then the final issue, the Dalton issue of how much the court could intrude into the kind of president's discretionary determinations.

[00:26:32] Speaker 04:
But that, that person, once they have a ripe issue, if their BLM came in and actually charged them a fee, it would reach that point where it was ripe, they would have an issue.

[00:26:41] Speaker 04:
But none of the plaintiffs in either of the cases here have that kind of ripe issue right now.

[00:26:45] Speaker 05:
So have any of the, any of the portions of the management plan.

[00:26:52] Speaker 05:
been enforced against any county state entity or private landholder?

[00:26:57] Speaker 04:
So the lands at issue, the restored lands, are still managed under the existing regional resource management plans that were in place prior to the proclamations.

[00:27:06] Speaker 04:
That will change soon.

[00:27:08] Speaker 04:
Soon there will be new management plans for the monuments, and those may impose requirements.

[00:27:13] Speaker 04:
If they don't, this is a whole hullabaloo about nothing.

[00:27:15] Speaker 04:
If they do, there will be someone at that point who has a ripe claim, and the only question

[00:27:21] Speaker 04:
will be under the APA once an agency takes some action under those new management plans that injures them.

[00:27:27] Speaker 04:
The only question then would again be the Dalton question about how much you can intrude into the president's discretion.

[00:27:32] Speaker 04:
But that would solve all the other issues.

[00:27:35] Speaker 04:
The claims here are very premature, so they don't have that kind of ripe issue from the, you know, from new management plans for monuments.

[00:27:43] Speaker 04:
They don't point to things that involve changes that have happened because the proclamations, agency actions have been taken since the proclamations.

[00:27:51] Speaker 05:
So do the states have any cognizable interests in the lands that have been designated?

[00:27:58] Speaker 04:
So these are United States lands, so they don't have a legally protected interest in how the United States decides to manage its own lands.

[00:28:07] Speaker 04:
They have some interest in kind of, they have police powers in the lands and they have a right to exercise them and things like that, but they don't have.

[00:28:14] Speaker 04:
a right to govern how the United States under, like a general right, they have FIPMA gives them certain coordination rights in, I'm sorry, the Federal Land Management and Policy Act.

[00:28:27] Speaker 05:
So in your position that they would have no right to enforce their police powers within the federal lands if the federal government chose to not allow them?

[00:28:36] Speaker 04:
If the president created a federal enclave and said that this is subject to, I mean, I think they would still have, just like they have at the Pentagon, if someone is murdered at the Pentagon, they can still investigate that as a state crime, a murder crime.

[00:28:50] Speaker 04:
But they could choose not to?

[00:28:51] Speaker 04:
Yeah.

[00:28:53] Speaker 04:
Okay.

[00:28:53] Speaker 04:
Fair enough.

[00:28:53] Speaker 04:
I defer to my colleague here.

[00:29:05] Speaker 00:
Thank you, Your Honors, and may it please the Court.

[00:29:06] Speaker 00:
Matthew Campbell on behalf of the Tribal Nations.

[00:29:09] Speaker 00:
And I'll just make two quick points.

[00:29:10] Speaker 00:
I know there's some interest in the question about the overlap between sovereign immunity, the ultra-virus, and the merits.

[00:29:16] Speaker 00:
And I think if you look at the Supreme Court's decision in Larson at 337 U.S.

[00:29:21] Speaker 00:
at 690, you'll see that the Court said there may, quote, may be overlap between ultra-virus question or the excessive authority and the merits.

[00:29:29] Speaker 00:
But I think this court pointed out in Wyoming versus the United States 279 F3D at 1230 that the ultimate question of ultra-virus and the merits or whether there's an incorrect decision as a matter of law are distinct questions.

[00:29:46] Speaker 00:
The way I've come to think about the ultra-virus issue is I think going back to Larson again, when you look at page 695 of Larson, the court there equated it and gave an example of jurisdiction, right?

[00:29:59] Speaker 00:
When a court has jurisdiction, just because it decides an issue incorrectly doesn't mean it didn't lack jurisdiction.

[00:30:06] Speaker 00:
So that was the example the court gave in Larson, and when you think about it in those terms, the district court's decision is actually not that out of line with that line of thinking, right?

[00:30:16] Speaker 00:
The court found that the president did not lack authority.

[00:30:20] Speaker 00:
It was within his jurisdiction to reserve federal lands, and therefore, ultra-virus was unavailable.

[00:30:26] Speaker 00:
The courts are sometimes circular on this question, though, and as Larson noted, it may depend on the merits.

[00:30:32] Speaker 00:
I think the district court, as Judge Carson rightly noted, did not rule on the merits, and so if the court were to get to the merits, we would, of course, ask for a remand for the full briefing on that and the district court to take it up in the first instance.

[00:30:46] Speaker 00:
The second point I would make is just that, Your Honor, when you look at the proclamations, they identify many

[00:30:52] Speaker 00:
historic landmarks, structures, and objects of immense importance to the tribal nations, their history, and who they are as a people.

[00:31:00] Speaker 00:
Whether it's kivas, dwellings, granaries, petroglyphs, ancient roads, there are numerous historic objects and sites that are identified.

[00:31:09] Speaker 00:
And when you compare that with house report number 59-2224, which was drafted in 1906, you'll see a lot of similarities, right?

[00:31:17] Speaker 00:
That house report

[00:31:18] Speaker 00:
identified Cottonwood Creek, Butler Wash, Comrash, many places within the Bears Ears region that that Congress understood deserved protection.

[00:31:28] Speaker 00:
It identified dwellings, communal houses, burial mounds, all these different sites.

[00:31:33] Speaker 00:
So when you look at these two things together, I think you'll see that even the original Congress understood many of the places within Bears Ears, within Grand Staircase,

[00:31:45] Speaker 00:
were within the jurisdiction or the authority of the president to protect.

[00:31:50] Speaker 00:
And that really answers that ultra-virous question.

[00:31:54] Speaker 05:
Finally, as the proclamation recognizes... What about the designation of animals?

[00:32:00] Speaker 05:
You talk about the things that they were considering.

[00:32:02] Speaker 05:
Is there any evidence that they were considering

[00:32:05] Speaker 05:
or any documents that they were considering animals?

[00:32:09] Speaker 00:
Yes, Your Honor.

[00:32:09] Speaker 00:
Well, I think when you think about scientific objects, but really, I think the Supreme Court in Capre has answered that question when it reserved Devil's Hole, right?

[00:32:16] Speaker 00:
When you think about the desert pupfish, all the land and habitat that goes with that, the court recognized it was within the president's jurisdiction or authority to reserve those things.

[00:32:26] Speaker 00:
Thank you, Your Honor.

[00:32:29] Speaker 05:
All right.

[00:32:30] Speaker 05:
That case will be submitted.

[00:32:32] Speaker 05:
We're going to go ahead.